Beyond Mukasey's Confirmation, White House Liability Issues Loom Large
Though it failed to send his nomination the way of Robert Bork, Attorney General nominee Michael Mukasey's evasiveness on the definition of torture has done something historic. It has made it unmistakably clear to mainstream observers that the President may be criminally liable for violating anti-torture laws. Criminal liability of this White House will have wider repercussions than Mr. Mukasey's confirmation. It will reverberate through his tenure as Attorney General, and beyond the end of the Bush administration.
We now know the reason why Mr. Mukasey refused to acknowledge that waterboarding meets the legal definition of torture, or at the very least cruel, degrading and inhuman treatment clearly had nothing to do with not being briefed about the procedure. If he didn't know at the time of the Senate committee hearing, he certainly learned afterwards that the US considered waterboarding criminal and prosecuted it for at least a century. The real reason, as to mainstream news analysts now acknowledge, was that publicly admitting waterboarding is torture or cruel and inhuman would have put the President in jeopardy of criminal charges.
The War Crimes Act of 1996 makes cruel, inhuman and degrading treatment of detainees a violation of the Geneva Conventions and a federal crime. In addition, a 1994 law, 18 USC Section 2340 (a), makes it a federal crime to engage in torture outside the US, it also applies to those who conspire with (or aid and abet or order) torture outside the US. Both statutes apply to any US national, including the President, the Vice President and other top officials, as well as subordinates, such as CIA officers or other US personnel. If the President ordered, directed or authorized waterboarding or other forms of torture or mistreatment, he may have violated these laws. They carry the death penalty in cases where victim dies. In such cases there is no statute of limitations, so the President could be subject to prosecution for the rest of his life.
Some contend that imposing criminal liability for acts performed in the heat of combat is wrong and that we can't hold the administration to 20/20 hindsight. But we know these acts were not spontaneous, but part of a premeditated pattern of legal manipulation dating back years. At least since 2002, President Bush, Attorney General Gonzales and possibly others including the Vice President knew that torture and detainee mistreatment entailed criminal liability, which they sought to defuse with novel legal theories and retroactive suspensions of established law.
In a February 2002 memo, then White House counsel Alberto Gonzales warned President Bush about exposure to criminal liability under the War Crimes Act, mentioning the danger that future independent counsels or prosecutors might seek to enforce the law (they generally prosecute top government officials, including presidents). He therefore recommended opting out of the Geneva Conventions, famously calling them "obsolete." His theory was that if the Conventions didn't apply, then the War Crimes Act wouldn't apply, so no prosecutions could be brought. The President accepted Gonzales' theory and suspended the Conventions 's protections for suspected Al Qaeda detainees.
But in June 2006 the Supreme Court rejected this theory and held the Geneva Conventions applicable to the treatment of all detainees, leaving the President open to liability for violating the War Crimes Act. So in October 2006 the White House effectively pardoned itself by slipping a little-noticed provision into the Military Tribunals Act, conferring effective immunity from the War Crimes Act on high-level officials by making it retroactively inoperative, from 1996 to 2006. Public attention was focused on habeas corpus and other controversial provisions in the bill, so it passed more or less unscrutinized.
Still, holes remain in the legal barricades the Bush administration has tried to erect around itself. Even if immunity from prosecution under the War Crimes Act stands, it only applies through 2006, not for mistreatment of detainees after that. And the 1994 anti-torture law applies throughout.
As Attorney General, Mr. Mukasey can try to plug these holes. He may shield President Bush and others from criminal liability; he may resist appointing an independent prosecutor to investigate White House actions. But he cannot, as the 2002 Gonzales memo recognized, tie the hands of future prosecutors. In lethal cases our anti-torture laws have no statute of limitations. Sooner or later, those who violated US law will be held accountable to them, if not by Mukasey, then by some future AG.
Former Congresswoman Elizabeth Holtzman served on the House Judiciary Committee during Nixon's impeachment. She co-authored the 1973 special prosecutor statute, and co-wrote (with Cynthia L. Cooper) the 2006 book The Impeachment of George W. Bush.
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The Wedge Strategists.
Something all should be aware of: (What's going on within Conservative think tanks.)
http://en.wikipedia.org/wiki/Wedge_strategy
While the above link deals with one specific issue, Intelligent design, it clearly shows the intent of "Wedge Strategists" it is a divisive practice and is in fact being used on many issues, it has become a ideologue's gambit.
Study it, and learn to recognize it, as it is being implemented.
Sh*T don't just happen, make *NO* mistake about it!
Covering the emperor's ass is job one. It's highly unlikely that any meaningful move to remove Bush and his Dick will succeed between now and January 2009. But, that said, Elizabeth Holtzman illuminates the possibilities for justice post presidency. Once these war criminals are out of office, there will at least be a reasonable chance to bring them to justice. As more revelations are made public, and for sure there's more to come, the chinks in their wall of denial will multiply.
There is a real danger they may attack Iran however, if they feel that their post presidency chances are too slim to gamble on. Arrogance in their perceived invulnerability, and sheer bull-headed determination could bring this war to the front, and then when the Iranian blowback happens, they'll ratchet up the war, perhaps openly using nukes, then declare martial law, suspend the Constitution and then lock down the government, move in the goons (Blackwater etc) and attack and imprison the opposition. It's a time honored tradition of dictators the world over, set up the conditions, build up the threat, fire the first shot, then let it go out of control, and take control in the ensuing chaos. If America is attacked directly, it's a virtual certainty that the Constitution will be officially dead, and any rights you may have wanted to give up to be safe, won't be there anymore anyway.
Do I sound paranoid? Didn't mean to...just came out that way.
I said from the get-go this bunch was rotten. I believed from day one of Bu$h's first theft of the presidency we were in for trouble. I said Bu$h and Cheney Inc would be due a big check from the oil industry. How naive of me to not see they would also be due a payback from the arms industry, the nukular industry,the tobacco industry,the chemical industry,the drug and health care industry, the drug testing industry, the telecoms,cable,commercial forestry, mining,auto,homeland security industry, incarceration corporations,mercenary corps and on and on and on. And the laws broken and the constitution used to wipe their asses with. It all makes me sick. Think about it people! Who ever thought we could sink so low?
Ms. Holtzman,
Brilliant analysis! You have to be a lawyer to begin to understand these complex legal issues. I have imagined the paranoia those who are facing war crimes experience. The long arm of the law catches up to war criminals eventually. We live in a nation of laws, not of men or political parties.
I watched the Watergate hearings and have read some of John Dean's books and articles on Findlaw. As it turns out, the same players were gathering political capital to re-attempt this subversion of our system of checks and balances.
President Ford made a mistake when he pardoned Richard M. Nixon. I predict that a Republican president would pardon Bush and Cheney.
Our country must respect the rule of law. There is nothing to "heal" when it comes to war crimes and violation of human rights.
Just as John Dean testified, despite the attorney-client privilege - to the dismay of some - the "fraud-crime" exception is broad enough to justify Mr. Dean's actions. I hope that others will understand the importance of not being an accessory to crime. Without ethical lawyers, our system does not function. Some of those unified executive opinions overstepped the boundaries of executive privilege or attorney-client privilege and entered into the zone of perpetration of a crime. As such, there is no good faith reliance on the advice of counsel or any other refuge for these lawyers and their "principals," such as the president or vice president.
As soon as the new Democratic president has finished taking the oath, I want them to issue an executive order right from the innauguration platform saying "This administration does not recognize pre emptive pardons, where no crime has been charged a la Nixon, or blanket pardons issued to cover any future contingency that might be broughtup." No get out of jail free cards will be recognized. That will undercut the Bush executive power right at the knees. The only one who can get off will be Scooter Libby because he was charged and convicted. Why issue a pardon if a person is not guilty of a crime.
Then appoint a legion of special prosecutors and go after them. If they all flee to Paraguay, freeze their assets and good riddance.
The crime of ordering waterboarding is grounds for impeachment and conviction. America is a nation of laws, not of individuals and George W. Bush, Dick Cheney, Donald Rumsfield, Alberto Gonzalez and any policy maker who ordered waterboarding should be fully prosecuted criminally. Garry Trudeau has pointed out that when W was the pledge master of DKE at Yale, that Bush branded pledges with a Delta by using a hot coat hanger. Bush's sadistic tendencies were evident as a young man.
For his whole life Bush got a free pass from his questionable activities - drug use, AWOL, DWI, insider trading. Hopefully he will eventually held liable for his current high crimes and misdemeanors - starting a pre emptive war knowingly using false information, torture and God knows what else.
Love your article, it gave me hope in the first paragraph, that maybe the Democrats had done something here to actually help save our reputation, but then I read on. I thought maybe Feinstein and Schumer did this for a reason, a backyard deal. Not an illegal one but a justified one.
Mukasey disturbed me MORE, in his reaction to the Executive Power of the President than he did the Waterboarding issue.
Who is to say that if and whom takes the Presidency will go forward with any War Criminal Prosecutions, which should happen, by law, but lets face it, they let Nixon off. This is the problem. When Ford gave Nixon the pardon, they gave authority to give every President in the future a pardon, for the Crimes he had Committed. Oh this poor man has suffered enough, well no he didn't. We can hope but it will not happen.
Thanks for the hope but Bush's Crimes are so long it would takes years to get it punishable. Do you really they are going to take the time????? If they do they all will go to jail for contributing to the crimes, both Democrats and Republicans.
Read John Deans Book Conservative without Conscience, these people will stop at nothing to get what they want, the Democrats are just as guilty.
bringo, bingo, bingo... oh Dems, if it walks like a criminal and quacks like a crimial, IT IS A CRIMINAL.
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Mukasey can try to shield President Bush and others from criminal liability, or resist appointing an independent prosecutor to investigate White House actions. But he cannot, as the 2002 Gonzales memo recognized, tie the hands of future prosecutors. In lethal cases our anti-torture laws have no statute of limitations. Sooner or later, those who violated US law will be held accountable to them, if not by Mukasey, then by some future AG.
Well said. In a perfect world, the Rule of Law would prevail, and those who violate it, causing deaths, injuries, and committing illegal surveillance would be prosecuted. The problem is, will any of our spineless, incompetent government attorneys undertake investigating, much less prosecuting Bush & Co. for high crimes, treason, crimes against humanity?
Another problem is that if Bush feels threatened after he leaves office, that he might be subject to investigation, prosecution or punishment for his crimes, he could declare Marial Law before election day, and himself President-for-Life. He'd hire Blackwater to quell demonstrations, enact a shoot-to-kill policy to scare citizens into submission, then launch attacks upon or close the media & press other than FAUX. He'd continue, under NCLB, to have all textbooks re-written to portray himself as the President who saved America.
1- Since the Constitution specifically prohibits Ex Post Facto convictions, wouldn't it also prohibit Ex Post Facto 'grants' of immunity? A legislative grant of immunity amounts to a pardon by that branch- a violation of separation of powers.
2- By the Constitution, treaties the US has signed and ratified are US Law, regardless of what other laws are passed. No President has the right to void a duly ratified treaty any more than he has the right to void a law with a signing statement.
Thank you for posting . . . my guess is the first law suits will be brought by overseas nationals who have suffered torture at the hands of this regime . . . the best we can hope for at the moment is that Congress has to balls to impeach these criminals
WHY DO YOU THINK KARL ROVE IS HIDING DOWN IN TEXAS?
SO HE CAN CONJURE UP NEW WAYS TO "STEAL" THE 2008 ELECTION, SUCH AS BY THE INDICTMENT OF HILLARY CLINTON 4 WEEKS BEFORE THE ELECTION, IN ORDER TO INSURE THE ELECTION OF THE REPUBLICAN CANDIDATE AND LESSEN, OR POSTPONE BY 4+ YEARS, THE EXPOSURE TO INVESTIGATION AND CRIMINAL PROSECUTION OF MEMBERS OF THE BUSH CHENEY CRIME MACHINE, INCLUDING BUSH AND CHENEY THEMSELVES, FOR WAR CRIMES AND OTHER CRIMES.
IF A DEMOCRAT WERE TO BE ELECTED, YOU CAN BET ON PARTICK FITZGERALD BEING NAMED EITHER ATTORNEY GENERAL OR SPECIAL PROSECUTOR, WITH A MANDATE TO PUT BUSH AND CHENEY BEHIND BARS.
WHY DO YOU THINK BUSH HAS BOUGHT PROPERTY IN PARAGUAY, WITH WHOM THE US HAS NO EXTRADITION TREATY???
Can a sitting Supreme Court Justice be impeached?
Yes, but to do so would take a VERY different Congress than the one we have now. Right now both the Democratic and Republican parties are the two right wings of the War Party, a.k.a. Money Party, a.k.a. MICFiC (military-industrial-congressional-financial complex). The Constitution is in fact no longer operative, because the officials who are in a position to defend our liberties either choose not to, or are coerced not to. The Republic will NOT be revived under the Democrats as currently constituted. Future President Clinton has already promised to continue the Reign of Lobbyists ("They represent people, and corporations that employ a lot of people" - it sounds plausible as long as you don't look under the covers and see what is really happening.)
Prosecution of the Bush/Cheney Gang is the only way to regain our national honor. If this happens, then removal of the fascist Supreme
Court Justices (all those who appointed Bush) would be next. I hope to live to see such things, but I do not consider them probable.
Just think for a minute about what we do know about this administration. I mean they break laws, lie, cheat, scare the public,intimidate,etc. Just think about what we don't know. That is what really scares me right now.
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Posted November 13, 2007 | 12:26 PM (EST)