David P. Ball
Posted: Oct 26th, 2011
After George W. Bush faced protests during his visit to Surrey last Thursday, details have emerged of how B.C.'s criminal justice branch – under the attorney general – intervened to shut down a torture case against the former U.S. president, even after a provincial court set a second hearing for January 9, 2012.
Human rights lawyers are now asking whether there was political interference in the judicial process, and are questioning the branch's decision to stay the proceedings -- a private prosecution on behalf of four men who say they were tortured in U.S. custody during Bush's term in office. One of the men, former Guantánamo Bay prisoner Murat Kurnaz, told theVancouver Observer he wants Bush charged with authorizing his imprisonment and torture for five years.
“I don't know why they decided to shut the case down immediately,” said Matt Eisenbrandt, a lawyer with the Canadian Centre for International Justice (CCIJ), who presented the private prosecution against Bush in a provincial court last Thursday. Such a prosecution, he said, is legal backdoor for citizens who believe a crime has been committed but not investigated. “I can only be left to assume it was a political decision. They wouldn't have had enough time to consider the merits of the case.”
Under the Convention Against Torture, to which Canada is a signatory, countries have a duty to prosecute alleged torturers if their own government fails to do so, he added.
“It's a slap in the face. It's really disappointing that the government wouldn't even consider the stories of four men who've been through brutal torture -- or even give them a day in court. For these four men to not even be allowed before a judge is a real travesty.”
The CCIJ filed the case, along with the U.S.-based Center for Constitutional Rights, on behalf of Hassan bin Attash, Sami el-Hajj, Muhammed Khan Tumani and Murat Kurnaz — four men who say they faced years of violations, including beatings, extreme temperature exposure, being hung handcuffed from walls, and having their heads forced under water while being kicked. Bin Attash remains imprisoned at Guantánamo Bay, but has not been charged with a crime.
B.C.'s attorney general declined to comment, but said that the decision rested with the Criminal Justice Branch (CJB), an independent agency its authority. That branch told the Vancouver Observer that criminal charges for events outside the country require the approval of Canada's attorney general, which had not been obtained.
“The Crown elected to stay the proceedings,” said Neil MacKenzie, a spokesperson for the CJB. “The Branch's assessment was there was no realistic chance of the Attorney General (of Canada)'s consent.”
“The decision we made was independent of the political process. We're independent – this is not a case when the attorney general directed us.”
After clearing the first legal hurdle – having the provincial court accept an “information” that a crime has been committed – a justice of the peace set a date for a second, process hearing, at which a judge could evaluate the evidence and either dismiss the case, issue a summons or put out an arrest warrant, MacKenzie said.
That day in court was cancelled after the CJB intervened, but the branch never in fact contacted the attorney general of Canada, MacKenzie confirmed, but instead consulted with federal prosecutors.
“If they didn't even bother consulting with the attorney general of Canada, I find that really disturbing,” Eisenbrandt said. “They're shutting down the case based on a lack of consent -- but they haven't conferred.”
“We believe the evidence against George Bush is quite strong – we submitted 4,000 pages of evidence to back that up, including his own words. There's a very solid legal case.”
Although police guarding the Surrey Regional Economic Summit told the Vancouver Observer that Bush enjoys diplomatic immunity an an “internationally protected person,” Eisenbrandt said such immunity only extends to current leaders or official diplomatic missions, and that Bush is therefore not immune to prosecution. Earlier this year, Bush cancelled a visit to Switzerland after a similar case was lodged against him there.
“If George Bush were not the former president of the United States, this might have been looked at quite differently. These laws are on the books in Canada to be able to prosecute people alleged to be involved in torture.”
MacKenzie acknowledged the Bush case is “an unusual matter,” but said the decision to shut down the prosecution was unrelated to merit of nearly 4,000 pages of evidence submitted, but rather based solely on the lack of attorney general consent – which he said is required for cases to proceed for crimes committed outside Canada.
Now human rights groups demanding Bush's arrest for torture – including Amnesty International – are pondering their next steps, which might include seeking censure of Canada at the United Nations for its “failure to comply with its obligations,” Eisenbrandt said. In any case, the organizations plan to continue to pursuit of the former president, he said.
“Certainly in terms of accountability against George Bush, he may not be so lucky next time he travels somewhere. Survivors aren't going to stop in their efforts for justice, nor are the human rights organizations that support them.”