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.
Copyright © 2007 HuffingtonPost.com, Inc.
Birds of a feather…
ah, there’s still someone who understands the meaning of the phrase “opposition party.”
oops, she’s not the senator from new york. i forget, which well-funded corporate hack stole her nomination? and what is that person doing about mukasey?
Screw impeachment, arrest him already. He can still be president in his jail cell for all the good he’ll do anyhow.
Well spoke’!
If Congress and the Dept of Justice continue to protect Bush and Cheney from prosecution, the International Criminal Court should have a go.
There should be a ban on dual citizens holding the highest offices of the land…to much of a conflict of interest I think.
As usual, Ms. Holtzman states the issues and the possibilities succinctly and authoritatively. It’s refreshing to get a fresh view. I hope she is right about future prosecutors. I can’t wait to see the members of the criminal conspiracy, as Keith Olberman described them, have their day in court, as defendants.
Who are we kidding? The reason the Dems don’t press forward or prosecute is because they will be doing the same thing when they get in the White House and don’t want precedents or standards that they’ll have to abide by. The Dems are no better than the Repugs, see Feinstein for evidence.
It will be interesting to see whether Bush pardons himself before he leaves office. Actually, we need to take the pardon power away from presidents and give it to a pardons board with long-term membership. And it would only consider pardon applications from people who have been convicted of something. When James Madison drafted Article II of the Constitution, it may never have occurred to him that presidents would dare to pardon their political cronies, as in Ford/Nixon, Bush/Weinberger, Clinton/Rich and Bush/whoever.
Holtzman has nailed it as she so often does, but I wish I could feel her muited optimism about some future AG taking some meaningful future action.
The sham opposition in Congress has consistently refused to call a spade a spade, and with their silent complicity, destroyed any collective hope that a respect for law and international standards of decency will be upheld at some tiome in the future.
Nothing would make me happier than to have been wrong about this, but unless we elect the likes of a Dennis Kuchinich, and replace every collarborating Democrat in Congress, nothing is gonna happen, folks.
To go after BushCo retroactively would be to acknowledge their own complicity in the crimes against humanity and the trashing of what’s left of our Constitution. Dems seem incapable of that.
I have more faith in the International community—maybe they can,at the very least, make it impossible for these thugs to travel into their countries withour facing criminal charges.
At least there is no statute of limitations for the anti-tortue law. So there is still hope beyond all the many legal contortions that prevent Bush and his cronies from being held accountable. But you know lawyers, as they have an endless barage of legal knots. Regarding this Presidential debacle, I hope true Democracy prevails with sublime justice in my lifetime.
Sublime justice will prevail. Either we will correct our mistake publicly and decisively or our mistake will redefine us and drag us to a diminished level appropriate to moral pygmies. Justice is not something to be hoped for. It is a natural law.
The Justice Department is now a de facto subsidiary of the Republican party and defense counsel to the executive branch, not a law enforcement agency. The Senate voted, by shamelessly confirming Judge Mukasey, to continue this policy. No competent lawyer can be unsure about the legality of waterboarding, not to mention the other tortures used which have, in dozens of cases, caused death at the hands of US officials or agents. The real question now: will Bush’s last words as president be “pardon me”?
The White House said in its statement that the Geneva Conventions shouldn’t apply to “captured terrorists who openly flout that law.”
“Should that not read “Alleged terrorists who allegedly flout the law, who have been illegally held without trial for years and allegedly tortured”?
Everyone deserves their day in court…EVERYONE
They carry the death penalty in cases where victim dies…
I can wait until some future President, after talking to the convicted and sentenced Bush, and asked what Bush said, says , in a sardonic voice…..
..” The Condemed Prisoner Bush said. “Oh No! Please, Please Don’t Kill Me!!!”" and laughs!!!
The USA will go down in history along side Hitler’s Germany and Stalin’s Russia and other nations who tortured and murdered
No “Statute of Limitations”? Best news I’ve heard in a long time!
Let’s devoutly hope that Bu$h/Cheney get theirs in the long run.
This is important folks,
As we are writing here , now is the time to write a letter to Pelosi to begin to do her duty.
Write to her directly or write to her care of cindy who would like to hand deliver them before Thanksgiving,
I heard from The Pen that since the Anthax Scare letters to Congress are delayed weeks …so if this is true that is another reasson to write it care of Cindy so that the delivery well be on time.
Don’t need a long letter but you are free to start the ball rollin… do we have what it takes or do we just complain?
Jim
If you want Impeachment write a letter to:
**************
Nancy Pelosi
c/o Cindy Sheehan
1260 Mission Blvd
San Francisco, Ca 94103
Please pass this around and have them sent by Friday, November 16th and we will have them delivered to her office in San Francisco before Thanksgiving.
Spread this far and wide so we can take sacks of letters to her.
Don’t include anything besides the letter.
Love
Cindy