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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I wish I could be more positive but I will not hold my breath waiting for these crooks and liars to be held accountable. They are getting away with murder and the Dems in power are showing their ineffectiveness by enabling them to continue the devastation of our once great country. Thank you, Ms. Holtzman, you are one in a million who is listening.
This article assumes that the U.S. is still under the rule of law and that there is someone in the government, either the Congress or Judiciary that would respect and enforce any laws. This is not the case any longer. In the Judiciary we have Alito, Roberts, Scalia, and Thomas whose legal approach to the Constitution is to somehow think it supports fascism (oops, I'm sorry I meant unitary Presidency, wink wink). On the other hand you have the bought and paid for Schumer and Feinstein who stand shamelessly before cameras offering twisted and contorted logic on why they would support an Attorney General who could possibly support torture.
Sorry, the rule of law went out when Bush started ignoring it and the Democrats went along with it.
Thank you. I guess we know why you are a former Congressperson. You actually care about the law.
George Bush didn't buy that property in Paraguay for nothing. If he doesn't declare martial law an suspend the 2008 elections, he and his family will fly as fast as they can down there come January 2009.
How about starting small, say, stopping the war crimes in progress?
Granting a Pardon to someone (Libby) who may have incriminating information against you is classic obstruction of justice, and Bush is guilty.
Giving telecons immunity to protect your own misdeeds is obstruction of justics, and Bush/Cheney are guilty if it passes.
Drafting retroactive immunity that excuses your own misdeeds is obstruction of justice, and Bush/Cheney are guilty.
These are criminals - powerful, elitist criminals, but criminals nonetheless.
If Mukasey is asking for a NEW law against waterboarding, it may be another trick to grandfather the waterboarders in under, "it must have been legal then if we passed a law now making it illegal."
"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."
A girl can dream; crossing my fingers that this one comes true.
I really wish someone could explain to me this concept of 'retroactive immunity'. And furthermore, how did the White House slip retroactive immunity into the Military Tribunals Act? I mean, the Executive executes the laws, Congress makes them, right? So, properly said, the Republican Congress, under the Control of the Republican Party, wrote retroactive immunity for torture into the Military Tribunals Act, right? Can Congress decide that someone accused of murder is nonetheless immune from prosecution because it has passed a new law that includes some form of 'retroactive immunity'? I simply don't understand how the legislative appoints itself the right to play willy-nilly with the laws it creates - i.e. warps them to political expediency. Doesn't the Judicial have a role in striking down grants of 'retroactive immunity'? I think what has happened is thatt he Bush administration has pushed our constitutional system to the absolute breaking point, because their party is fundamentally incapable of admitting wrong, and has succeeded in enveloping members of the opposition into their criminal activities. Now their legal sophism has become so grotesque that common sense, reasonable interpretations of law, essentially the bedrock of reason itself, is being sacrificed to not only keep the boy king out of jail, but also to keep a lid on the gross departure from American tradition that this administration, this congress and this supreme court represent. In other words, we have been fundamentally corrupted, and that is what happens when law is sacrificed to political expediency. Though I think there has been a deep rot in America festering for a long time, from Iran-Contra to BCCI to the S&L scandal - I mean, my God, look into BCCI, it will ASTOUND YOU - I would argue that Bush v. Gore was America's most visible departure from our respect of law, and what we are witnessing is foremost the result of that evil usurption. I have never had more anger than I do for the ignorant minions who have enabled this evil cabal to so fundamentally destroy the values of this couhtry. You ignorant red-state hicks.
The DC Dems -- acting as the regime's impeachophobic firewall -- are on some thin ice themselves.
Int'l law requires gov't officials to report, and act to stop, torture and war crimes. Since taking the majority, the Dem Congress IS "The US Gov't," and as such have treaty obligations of their own to fulfill -- or risk the consequences. With power comes responsibility.
Not that there'd be domestic legal liability, but they may well be subject to arrest abroad for their tacit approval of bushcheney atrocities. And there's no statute of limitations on war crimes.
We "didn't have the votes" isn't going to wash at The Hague.
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Dear Ms. Holtzman,
Thank you SOooooooooo much for your eloquent essay/post. Especially now, it has become more important than ever for People to understand this stuff. Agape.
This article reiterates what most who oppose the war here and abroad have known all along--that Bush & other high ranking members of his administration are war criminals. It may take years, but they will get their due, and go down in history as the most corrupt, immoral, and shameful administration in U.S. history.
This is a much needed analysis, and I hope that other prominent lawyers also discuss the interplay among the War Crimes Act (1996), the Anti-Torture Statute (1994), the exoneration provision in the Detainee Treatment Act of (2005) and the Military Commissions Act. The retroactive get out of jail free cards are not absolute; they forgive everything except "grave breaches" of the Geneva Conventions and also throw in an "advice of counsel" caveat, which is one of the reasons Bush does not want his main legal officer weighing in with a definitive pronouncement on waterboarding, which has obviously been extensively used. It occurs to me that if the torture, at the time it was committed, was a war crime, and if a subsequent Congress and President repeal the exoneration provision (as a civilized nation should), the criminal liability could be reinstated in full without violating ex post facto. I think Bush, Cheney and Addington realize this could happen. It probably explains Bush's Paraguay ranch.
I am amazed how even in this article the assertion that this president is a criminal is softened with semantics: "(If) the President ordered, directed or authorized waterboarding or other forms of torture or mistreatment, he (may) have violated these laws."
That statement should read: "(When) the President ordered, directed [and] authorized waterboarding or other forms of torture or mistreatment, he violated these laws."
There's no "if" or "may" about this. He did, and he did. Now we need to hold him to account for his crimes, along with the other criminal cronies he brought with him.
Brilliant!
Kind of lame, isn't it?
Who DOES commit a war-crime except a head-of-state or his appointee? Duh.
If you are faced with a well-entrenched criminal cabal which has implanted itself firmly in all three Branches of our government -- as we do now -- do you expect that cabal to do anything but to perpetuate and protect its own crimes?
Do you expect the Congress, being "in on" The Operation, to impeach ... anyone? To prosecute ... anyone?
Do you expect an attorney-general who claims to not know what torture is, to have been appointed (and confirmed, in the wee hours of the morning, this being the hour when sewer-rats are usually at work...) for any other purpose?
Do you think it makes the slightest bit of difference to these people whether they call themselves Republican or Democrat?
Think like they do... hundreds of billions of dollars spent, and they and/or their companies get those dollars. Trillions of dollars' worth of oil to seize, and if it's seized they get it. And so on. It's everything "Ike" Eisenhower foresaw, but on-steroids.
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