Justice After Bush: Prosecuting an outlaw administration

(11 am. – promoted by ek hornbeck)

Over at Harper’s, Scott Horton lays out the case for prosecuting the Bush adminstration (subscription required, but having someone lay out the case clearly does my heart good, so it’s worth it).

First, Horton notes how we cannot simply walk away from BushCo’s lawbreaking and move on, because BushCo didn’t simply break some laws like his predecessors.  They waged war on law itself.

This administration did more than commit crimes. It waged war against the law itself. It transformed the Justice Department into a vehicle for voter suppression, and it also summarily dismissed the U.S. attorneys who attempted to investigate its wrongdoing. It issued wartime contracts to substandard vendors with inside connections, and it also defunded efforts to police their performance. It spied on church groups and political protesters, and it also introduced a sweeping surveillance program that was so clearly illegal that virtually the entire senior echelon of the Justice Department threatened to (but did not in fact) tender their resignations over it. It waged an illegal and disastrous war, and it did so by falsely representing to Congress and to the American public nearly every piece of intelligence it had on Iraq. And through it all, as if to underscore its contempt for any authority but its own, the administration issued more than a hundred carefully crafted “signing statements” that raised pervasive doubt about whether the president would even accede to bills that he himself had signed into law.

Then, Horton gets to the hard part.  How do you move forward with such a massive and complex set of prosecutions against the president and his entire senior staff?  No precedent exists for such an undertaking, and it’s not clear that our legal system can handle such an undertaking.   What are we going to do?  Prosecute our entire political class on all of the myriad crimes they have collectively committed?  Obama is going to have his hands full just with the issue of Bush signing statements, not to mention achieving bi-partisan consensus on the ongoing crises of the economy, environment, and failed wars.

Horton gets pragmatic: Bust the Big Fish on Torture.

There can be no doubt that torture is illegal. There is no wartime exception for torture, nor is there an exception for prisoners or “enemy combatants,” nor is there an exception for “enhanced” methods. The authors of the Constitution forbade “cruel and unusual punishment,” the details of that prohibition were made explicit in the Geneva Conventions (“No physical or mental torture, nor any other form of coercion, may be inflicted on of any kind whatever”), and that definition has in turn become subject to U.S. enforcement through the Uniform Code of Military Justice, the U.S. Criminal Code, and several acts of Congress.  Nor can there be any doubt that this administration conspired to commit torture: Waterboarding. Hypothermia. Psychotropic drugs. Sexual humiliation. Secretly transporting prisoners to other countries that use even more brutal techniques. The administration has carefully documented these actions and, in many cases, proudly

proclaimed them. The written guidelines for interrogations at Guantánamo Bay, for instance, describe several techniques for degrading and physically debilitating prisoners, including the “forceful removal of detainees’ clothing” and the use of “stress positions.” And in a 2006 radio interview, Dick Cheney said simply that the use of waterboarding to obtain intelligence was a “no-brainer.”2

There is no doubt in the mind of any rational person that BushCo tortured people quite deliberately, aggressively, and repeatedly; there are multiple prohibitions against torture that have no exceptions; suggesting this case would be, in the words of George Tenet, “a slam dunk.”  While Horton footnotes how decidedly un-American is the practice of torture, offensive to us based partly on Enlightenment principles of fairness of process, and partly on our own leadership on the issue of human rights.  

Horton also recounts how the administration was aware of the potential criminality early on in the process as they wrote various memos attempting to redefine torture (enhanced interrogation) and prisoner of war status (enemy combatants), and the very meaning of war (war on terror is non-conventional, making the Geneva Conventions “quaint.”  Thus, there is evidence of “guilty minds,” and guilty intentions.  Cheney, Powell, Rice, Rumsfeld, Tenet, and Ashcroft met early on (2002) to discuss specific methods, when Ashcroft famously asked:

“Why are we talking about this in the White House? History will not judge this kindly.”3

He also recounts a conversation with Jane Mayer (author of Journey to the Dark Side) in which she quotes a CIA officer on the topic, who said:

“Laws? Like who the fuck cares?”

If anyone thinks there has ever been an administration that has more brazenly attacked the rule of law and proclaimed itself King, feel free to leave your ding-dong comments in the thread below.  Every single day I think the same exact thing that the CIA officer said: Laws?  Like who the fuck cares?  Seriously.  I will continue asking myself that question into the Obama administration.  I hope no one believes that a two-tiered justice system is acceptable.  Law and order are wonderful, fragile things.  Even should Obama simply end torture and shut GITMO, the knowledge and acceptance that our leaders can and have gotten away with torturing humans will not cease being a crisis of law and order.

Horton proceeds to list potential venues for criminal trials:



Nuremberg-style tribunal: The United States convenes a tribunal to try the people in the positions of authority (lawyers, judges, policymakers) to create or prevent the extra-legal frameworks that allowed torture to take place.

International Criminal Court: Mainly used by greater powers to prosecute lesser powers.  US refuses to join other 108 members and sign the charter.  Unlikely legally, impossible politically.

Foreign Courts: War crimes are not subject to strict claims of jurisdiction.  For example, Canada could potentially prosecute US war criminals on the basis of the renduring and torture of Canadian nationals in other countries, just as Pinochet was seized in Britain based on Spanish warrants.  Being a super-power, we’re unlikely to extradite our own (well, WHY NOT???), and other countries are either allies or would tend to treat us delicately, noting however that 26 CIA officers are, in fact, being tried in absentia in Italy for assault and kidnapping.  That doesn’t get the Big Stinking Fish, though.



Domestic Courts:

Uniform Code of Military Justice:  Unlikely.  Too much deference to preserving “command structure.”

Federal Courts: Bush has tight control of DOJ.  Mukasey won’t lift a finger.  Also, Bush will likely pardon war criminals, but those pardons need not be respected outside of the US.  In fact, it may signal to foreign courts that no domestic solution is possible, thus motivating foreign intervention, conferring jurisdiction by last resort, should locally pardoned criminals decide to travel beyond our borders.



Commission of Inquiry (“Truth & Reconciliation”): This strikes me as sort of New Age law and order: Granting immunity to criminals in exchange for the establishment of historical truth.  Is our political consensus really that fragile?  The election was decisive.  Still, I’d take truth over nothing.  Nothing comes from nothing.  Besides, when the truth came out, people might change their minds about those local pardons, and over-ride them with international jurisdiction.  

Horton disagrees with my exotic “new agey” label.  He thinks “truth and reconciliation” is the best path having a precedent, citing the Warren Commission investigating JFK’s assassination (1963), and the Kerner Commission investigating race riots (1967).  This could be done at the stroke of the Executive’s pen, or by hybrid executive-legislative authority.  While the commission would require bipartisan support, the actual work should be carried by professional lawyers, investigators, and experts given security clearances, not by politicians.

With respect to the scope of the investigation, Horton suggests:

The commission’s mandate requires definition and focus. It must also, however, provide the commission with reasonable room to pursue leads that arise in the course of its investigation. The commission’s charge, therefore, should be to examine the formation and implementation of policy concerning the treatment of detainees in operations (including intelligence operations) undertaken in connection with the Authorization for Use of Military Force Against Terrorists. Tying the subject matter to a specific piece of legislation will keep the investigation focused on a single controlling authority even as it allows investigators to explore all of the operations

in which that authority was used, whether in Iraq or Afghanistan, nearby staging areas, or other sites around the world, including Guantánamo and “black sites” yet to be identified.12   Such a mandate would also allow the commission to investigate a variety of nonadministration actors, including Congress itself. Republicans have frequently argued that many powerful Democrats, including House Majority Leader Nancy Pelosi and Intelligence Committee Chairman Jay Rockefeller, were fully briefed on the administration’s torture policy and failed to raise objections. Did Congress acquiesce to the administration’s choices? Did it provide legal authority? Republicans may be questioning Democratic involvement simply in order to discourage congressional

inquiries. But such questions nonetheless are completely legitimate.

I think this is an excellent idea.  Limit the scope of the investigation to easily demonstrated crimes under specific laws, but don’t limit the prosecution to only actors within the Bush administration.  Outside actors might well have abetted the crimes, and this should also be found out for the purposes of “historical truth.”  In this respect, the commission’s work should be as transparent as possible.

In addition to limited scope, historical accuracy, and transparency, the commission should offer formal recommendations on future policy, and if laws were broken, whether such criminal activity merits the attention of legal professionals.  Also, they should formally recommend what reparations are to be paid to the victims under existing reparation laws.

However, rather than just providing “truth” and calling it a day, he further suggests that if prosecutable crimes occurred, those prosecutions should take place at the hands of a different set of actors.

Horton concludes that the commission should act in a manner opposite of that of the Bush administration: carefully, prudently, openly, and not in a rush to judgment.

Read the whole thing.