Do We Still Pretend That We Abide by Treaties?

On Friday in Salon, Joe Conason argued
that there should be no criminal investigations of any kind for Bush
officials "who authorized torture or other outrages in the 'war on
terror'." Instead, Conason suggests that there be a presidential
commission created that is "purely investigative," and Obama should
"promis[e] a complete pardon to anyone who testifies
fully, honestly and publicly." So, under this proposal, not only would
we adopt an absolute bar agai

On Friday in Salon, Joe Conason argued
that there should be no criminal investigations of any kind for Bush
officials "who authorized torture or other outrages in the 'war on
terror'." Instead, Conason suggests that there be a presidential
commission created that is "purely investigative," and Obama should
"promis[e] a complete pardon to anyone who testifies
fully, honestly and publicly." So, under this proposal, not only would
we adopt an absolute bar against prosecuting war criminals and other
Bush administration felons, we would go in the other direction and pardon them from any criminal liability of any kind.

I've
already written volumes about why immunizing political officials from
the consequences for their lawbreaking is both destructive and unjust
-- principally: the obvious incentives which such immunity creates
(and, for decades, has been creating) for high-level executive branch
officials to break the law and, even worse, the grotesque two-tiered
system of justice we've implemented in this country (i.e., the
creation of an incomparably harsh prison state for ordinary Americans
who commit even low-level offenses as contrasted with what Conason
calls, approvingly, "the institutional reluctance in Washington to
punish political offenders"). Rather than repeat those arguments, I
want to focus on an issue that pro-immunity advocates such as Conason
simply never address.

The U.S. really has bound itself to a treaty called the Convention Against Torture, signed by Ronald Reagan in 1988 and ratified by the U.S. Senate in 1994.
When there are credible allegations that government officials have
participated or been complicit in torture, that Convention really does compel all signatories -- in language as clear as can be devised -- to "submit the case to its competent authorities for the purpose of prosecution" (Art.
7(1)). And the treaty explicitly bars the standard excuses that
America's political class is currently offering for refusing to
investigate and prosecute: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture"
and "an order from a superior officer or a public authority may not be
invoked as a justification of torture" (Art. 2 (2-3)). By definition,
then, the far less compelling excuses cited by Conason (a criminal
probe would undermine bipartisanship and distract us from more
important matters) are plainly barred as grounds for evading the
Convention's obligations.

There is reasonable dispute
about the scope of prosecutorial discretion permitted by
the Convention, and there is also some lack of clarity about how many
of these provisions were incorporated into domestic law when the Senate
ratified the Convention with reservations. But what is absolutely
clear beyond any doubt is that -- just as is true for any advance
promises by the Obama DOJ not to investigate or prosecute -- issuing
preemptive pardons to government torturers would be an unambiguous and
blatant violation of our obligations under the Convention
.
There can't be any doubt about that. It just goes without saying that
if the U.S. issued pardons or other forms of immunity to accused
torturers (as the Military Commissions Act purpoted to do), that would
be a clear violation of our obligation to "submit the [torture] case to
its competent authorities for the purpose of prosecution." Those two
acts -- the granting of immunity and submission for prosecution -- are
opposites.

And yet those who advocate that we refrain from
criminal investigations rarely even mention our obligations under the
Convention. There isn't even a pretense of an effort to reconcile what
they're advocating with the treaty obligations to which Ronald Reagan
bound the U.S. in 1988. Do we now just explicitly consider ourselves
immune from the treaties we signed? Does our political class now just
officially (rather than through its actions) consider treaties to be
mere suggestions that we can violate at will without even pretending to
have any justifications for doing so? Most of the time, our binding
treaty obligations under the Convention -- as valid and binding as
every other treaty -- don't even make it into the discussion about
criminal investigations of Bush officials, let alone impose as any
limits on what we believe we can do.

What was all the sturm und drang
about in 2003 over Bush's invasion of Iraq without U.N. approval, in
violation of the U.N. charter? Wasn't it supposed to be a bad thing
for the U.S. to violate its own treaties? What happened to
that? Conason himself was actually one of the clearest and most
emphatic voices presciently highlighting the deceit on which the pro-war case was based, stridently warning of
"ruined alliances and damaged institutions." Why, then, is it
acceptable now to ignore and violate our treaty obligations with regard
to torture and other war crimes committed by high-level Bush
officials? What's the argument for simply pretending that these
obligations under the Convention don't exist?

* * * * *

On
a related note, Conason, in the very first paragraph of Friday's
article, plainly misstated the results of a new Gallup poll on the
question of whether Bush officials should be prosecuted and/or
investigated. I have no doubt it was unintentional, but his error
highlights a very important point about how this debate has proceeded.
Here's what Conason wrote (emphasis added):

More
than 60 percent of Americans believe that alleged abuses and atrocities
ordered by the Bush administration should be investigated

either by an independent commission or by federal prosecutors,
according to a poll released yesterday by the Gallup Organization. A
significant minority favors criminal sanctions against officials who
authorized torture or other outrages in the "war on terror" -- yet a considerably larger minority of nearly 40 percent prefers that the Obama administration leave its wayward predecessors be.

That last sentence is simply untrue. As Jim White notes here,
the Gallup poll asked about three different acts of Bush lawbreaking:
(1) politicization of DOJ prosecutions, (2) warrantless eavesdropping
on Americans, and (3) torture. For each crime, it asked which of three
options respondents favored: (1) a criminal investigation by the DOJ;
(2) a non-criminal, fact-finding investigation by an independent panel;
or (3) neither. The full results are either of here.

For
all three separate acts of alleged crimes, the option that receives the
most support from Americans is criminal investigations
(i.e.,
the exact opposite of what Conason wrote). Moreover, the percentage
that favor that nothing be done never reaches 40% or close to it (the
highest it gets is 34% -- roughly the same minority of pro-Bush
dead-enders that continue to support most of what was done).

As White notes, the breakdowns are even more revealing. For all three areas of lawbreaking, majorities of Democrats (which, by the way, is now the majority party) favor criminal investigations. For each of the three areas, more independents favor criminal prosecutions than favor doing nothing, and large majorities
of independents -- ranging from 59% to 71% -- want either a criminal
investigation or an independent fact-finding investigation). A Washington Postpoll from a couple weeks ago found very similar results: majorities of Americans (and large majorities of Democrats) favor investigations into whether Bush officials broke the law and, by a wide margin, oppose the issuance of pardons to Bush officials.

Imagine
what those numbers would be in a world where virtually every
establishment political pundit -- literally: whether Democratic or
Republican, liberal or conservative -- weren't uniting together to
oppose prosecutions for torture and war crimes. Even with that unified
anti-prosecution stance from the Beltway establishment, criminal investigations remain the leading position amongAmericans generally and among majorities of Democrats specifically. Those are just facts.

As
is always the case, the mere fact that majorities of Americans believe
X does not mean that X is right or true. But pundits, journalists and
politicians should stop claiming that they're speaking for most
Americans when they argue that we should just "move on" -- or that the
belief in investigations is the province of the leftist fringe --
because that claim is demonstrably false.

Recall when opposition
to the Iraq War and a demand for a withdrawal timetable was routinely
depicted by the Beltway class as a "liberal" or even Far Left position
-- even though large majorities of Americans held exactly those views. Apparently, the Far Left encompassed more than 60% of the country. Or recall when Time's Managing Editor, Rick Stengel, went on national TV and claimed that Americans don't want Bush officials and Karl Rove investigations for the U.S. Attorney scandal
even when polls showed that large majorities of Americans favored
exactly those investigations (a false claim which, to this day, he
refuses to retract).

That is the same flagrant distortion of public opinion that one finds here in the debate over investigations. The Washington Post's David Ignatius claims that a desire for investigations of Bush crimes is confined to "liberal score-settlers." Lindsey Graham asserts that only the "hard Left" wants criminal investigations. Newsweek's Jon Barry is certain that the desire for investigations is only about "vengeance, pure and simple."

Apparently,
huge numbers of Americans -- majorities, actually -- are now liberal,
vengeance-seeking, score-settlers from the Hard Left. What we actually
have is what one finds again and again: establishment journalists who
will resort to outright distortions about American public opinion in
order to render it irrelevant, by claiming that "most Americans"
believe as they believe even where, as here, that claim is
categorically false.

* * * * *

Finally, Newsweek's Michael Isikoff -- echoing a report from John Yoo's Berkeley colleague, Brad DeLong -- reports that
an internal DOJ probe (initiated during the Bush administration) has
preliminarily concluded that Bush DOJ lawyers who authorized
torture (John Yoo, Jay Bybee, Stephen Bradbury) violated their
professional duties as lawyers by issuing legal conclusions that had no
good faith basis, and that this behavior will be referred to their
state bar associations for possible disciplinary action. Those
conclusions so infuriated the allegedly honorable Michael Mukasey that
he refused to accept the report until changes were made. Now it is up
to Eric Holder to accept and then release that report.

The
implications of this event can't be overstated. One of the primary
excuses offered by Bush apologists and those who oppose investigations
is that Bush DOJ lawyers authorized the torture and opined that it was
legal. But a finding that those lawyers breached their ethical
obligations would mean, by definition, that the opinions they issued
were not legitimate legal opinions -- i.e., that they were not
merely wrong in their conclusions, but so blatantly and self-evidently
wrong that they were issued in bad faith (with the intent to justify
what they knew the President wanted to do, rather than to offer their
good faith views of what the law permitted).

The Convention
Against Torture explicitly prohibits the domestic legalization of
torture, and specifically states that it shall not be a defense that
government officials authorized it. So whether or not these legal
opinions were issued in good faith is irrelevant to our obligations
under that treaty to investigate and prosecute. But a finding that
these legal opinions were issued in bad faith -- with the deliberate
intent to knowingly legalize what was plainly criminal behavior -- will
gut the primary political excuse for treating Bush officials
differently than common criminals.

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