America's Law-Free Zone

David Rivkin and Lee Casey are right-wing lawyers and former Reagan
DOJ officials who, over the last eight years, have been extremely
prolific in jointly defending Bush/Cheney theories of executive power.
Today, they have one of their standard Op-Eds, this time inThe Washington Post,
demanding that there be no investigations or prosecutions of Bush
officials. Most of the arguments they advance are the standard
platitudes now composing Beltway conventional wisdom on this matter.
But there is one aspect of their advocacy that is somewhat remarkable
and worth noting.

Rifkin and Casey have long been vigorous
opponents of the legitimacy of international tribunals to adjudicate
crimes committed by American officials. In February, 2007, they wrote an Op-Ed in the Post
bitterly criticizing Italian officials for indicting 25 CIA agents who
had literally kidnapped a Muslim cleric from Italy and "rendered" him
from Milan to Egypt. In that Op-Ed, the Bush-defending duo argued that
Italy had no right to prosecute these agents (h/t reader tc):

An
Italian court announced this month that it is moving forward with the
indictment and trial of 25 CIA agents charged with kidnapping a radical
Muslim cleric. These proceedings may well violate international law,
but the case serves as a wake-up call to the United States . . . .

[T]he United States must still vigorously resist the prosecution of its indicted agents. . . . [I]t is up to American, not Italian, authorities to determine whether any offense was committed in the capture and rendition of Nasr.

Unfortunately, the effort to prosecute these American agents is only one instance of a growing problem. Efforts to use domestic and international legal systems to intimidate U.S. officials are proliferating, especially in Europe.
Cases are pending in Germany against other CIA agents and former
defense secretary Donald Rumsfeld -- all because of controversial
aspects of the war on terrorism. These follow Belgium's misguided
effort to pursue "universal jurisdiction" claims for alleged violations
of international law, which also resulted in complaints against
American officials including Vice President Cheney and former secretary
of state Colin Powell. That law was amended, but the overall problem is
unlikely to go away. The initiation of judicial proceedings against individual Americans is too attractive a means of striking at the United States -- and one often not subject to control by the relevant foreign government.

Accordingly, Congress should make it a crime to initiate or maintain a prosecution against American officials if the proceeding itself otherwise violates accepted international legal norms.

So
it's up to the U.S. -- not any foreign tribunals -- to prosecute war
crimes and other felonies committed by American officials (for reasons
that, at least in part and under certain circumstances (not prevailing
in the Italian case), I find persuasive).
In fact, they argue, international prosecutions are so illegitimate
that such proceedings themselves should be declared crimes. Indeed,
like most of their political comrades, Rivkin and Casey have
consistently argued that U.S. jurisdiction over alleged violations of
international law and U.S. treaties by U.S. citizens -- including our
leaders -- is exclusive.

They made the same argument when opposing U.S. ratification of the enabling statute of the International Criminal Court (.pdf),
arguing that "[t]he question is whether [international] law can, or
should, be enforced outside national legal systems that have generally
functioned well." Their answer, of course, is that, when it comes to
Americans, international law obligations cannot and shouldn't be
enforced anywhere but America:

There are many
problems with the Rome Treaty. The most immediate one, for Americans,
is the danger of its being used as a political instrument against us.
But the most profound flaw is a philosophical one: The concept of
"international" justice underpinning the ICC project is more apparent
than real. . . .

The prosecution of political leaders is
inherently political, and there are at least two sides to every
political conflict. . . . From America's perspective, the greatest
practical danger of joining the ICC regime would be that the court,
driven by those who may resent American global preeminence, could seek
to restrain the use of U.S. military power through prosecutions of U.S.
leaders.

They then went on to call for the Bush
administration to vocally and decisively reject the legitimacy of the
ICC so that the whole edifice would collapse. This is because
American leaders should not be subjected to prosecution in foreign
countries for their crimes -- only in America.

Yet what do these two argue today? That domestic investigations and prosecutions -- by American tribunals and American courts -- are also
inappropriate, illegitimate and destructive. Though they acknowledge
that "the Justice Department is capable of considering whether any
criminal charges are appropriate," they nonetheless insist that this
must not be done:

For his part, President Obama
has reacted coolly to calls to investigate Bush officials. Obama is
right to be skeptical; this is a profoundly bad idea -- for policy and,
depending on how such a commission were organized and operated, for
legal and constitutional reasons. . . .

Attempting
to prosecute political opponents at home or facilitating their
prosecution abroad, however much one disagrees with their policy
choices while in office, is like pouring acid into our democratic
machinery. As the history of the late, unlamented independent
counsel statute taught, once a Pandora's box is opened, its contents
can wreak havoc equally across the political and party spectrum. . . .

Obama and the Democratic Congress are entitled to revise and reject any or all of the Bush administration's policies. But no one is entitled to hound political opponents with criminal prosecution, whether directly or through the device of a commission, and those who support such efforts now may someday regret the precedent it sets.

So
no international tribunals or foreign countries have any power to
investigate or prosecute American officials for war crimes (even when
those war crimes are against citizens of those countries and/or
committed within their borders). And, American political officials
must also not be prosecuted inside the U.S., by American courts.
"Nobody is entitled" to do that either, because "attempting to
prosecute political opponents at home or facilitating their prosecution
abroad is like pouring acid into our democratic machinery."

The
implication of their argument -- which is now the conventional Beltway
view -- is too obvious to require much elaboration. If our political
leaders can't be held accountable for their war crimes and other
serious felonies in foreign countries or international tribunals, and
must never be held accountable in the U.S. either (because to do so is
to "pour acid into our democratic machinery"), then it means that
American political officials (in contrast to most other leaders) are completely and explicitly exempt from, placed above, the rule of law. That conclusion is compelled from their premises.

At
least to me, it's just endlessly perplexing how anyone -- let alone our
political class in unison -- could actually endorse such absolute
lawlessness for political leaders. Didn't our opinion-making elites
learn in the eighth grade that the alternative to a "nation of laws"
was a "nation of men" -- i.e., the definition of tyranny? Those are the only two choices. It's just so basic.

Apparently, though, this is all fine with our political establishment, since none of this is new. Here's what Iran-contra prosecutor (and life-long Republican official) Lawrence Walsh said in 1992 after George H.W. Bush pardoned Casper Weinberger days before his trial was set to begin:

President Bush's pardon of Caspar Weinberger and other Iran-contra defendants undermines
the principle that no man is above the law. It demonstrates that
powerful people with powerful allies can commit serious crimes in high
office -- deliberately abusing the public trust without consequence.

Weinberger,
who faced four felony charges, deserved to be tried by a jury of
citizens. Although it is the President's prerogative to grant pardons,
it is every American's right that the criminal justice system be administered fairly, regardless of a person's rank and connections.

The
Iran-contra cover-up, which has continued for more than six years, has
now been completed with the pardon of Caspar Weinberger. . . .
Weinberger's early and deliberate decision to conceal and withhold
extensive contemporaneous notes of the Iran-contra matter radically
altered the official investigations and possibly forestalled
timely impeachment proceedings against President Reagan and other
officials. Weinberger's notes contain evidence of a conspiracy among
the highest-ranking Reagan Administration officials to lie to Congress
and the American public. . . .

In light of President Bush's own misconduct, we are gravely concerned about his decision to pardon others who lied to Congress and obstructed official investigations.

Does
anyone deny that we are exactly the country that Walsh described: one
where "powerful people with powerful allies can commit serious crimes
in high office -- deliberately abusing the public trust without
consequence"? And what rational person could think that's a desirable
state of affairs that ought not only be preserved -- but fortified
still further-- as we move now to immunize Bush 43 officials for their
far more serious and disgraceful crimes? As the Rifkin/Casey oeuvre
demonstrates, we've created a zone of lawlessness around our highest
political leaders and either refuse to acknowledge that we've done that
or, worse, have decided that we don't really mind.

UPDATE: In a world in which the Rivkin/Casey mentality dominates (i.e.,
the world in which we actually live), imagine that you're the American
President, sitting in the Oval Office, tempted to issue a secret order
that you know directs that laws be broken. What possible pragmatic
motive would you have to refrain from doing that? Wouldn't any
rational person in that situation think to themselves:

There's
nothing that would stop me from doing this because, fortunately, we
live in a country where the President actually has the right to break
the law and to do so without consequences. In fact, amazingly enough,
the citizenry -- or at least the opinion-making elite -- has somehow
become convinced that it's a good thing -- vital even -- for
the President to have this lawbreaking right and to be shielded from
consequences when he commits crimes. I don't know how that they got
convinced of that, but that's actually how they think. As strange as
it is, I know that if I decide to commit this crime, political and
media figures from across the political spectrum will join together to
insist that there must be no consequences for what I have done.

Ironically,
while there is consensus horror in America's political class over the
idea that our political leaders might be charged and tried in the U.S.
(let alone a foreign country) for their torture and other war crimes,
we -- Americans -- have adopted a statute that expressly arrogates unto
ourselves the power to do exactly that to leaders of other countries,
and the Bush administration -- even as they presided over their own
torture regime -- actually invoked that law to pursue such prosecutions. After a torture prosecution of a Liberian official last December, Bush's Attorney General, Michael Mukasey, actually spoke these words -- what very well might be the most audaciously hypocritical quote of all of 2008:

Law
without conscience is no guarantee of freedom; that even the seemingly
most advanced of nations can be led down the path of evil; and that we must confront horror with action and vigilance, not lethargy and cowardice. . . .

His
conviction - the first in history under our criminal anti-torture
statute - provides a measure of justice to those who were victimized by
his reprehensible acts, and it sends a powerful message to
human rights violators around the world that, when we can, we will hold
them accountable for their crimes.

No torturer is safe from American judicial accountability -- as long as the torturer is not an American political official.