Obama’s Duty To Prosecute Bush For War Crimes

Obama promised that he would investigate and prosecute Bush team for “genuine crimes”  because no one is above the law, but he would not prosecute “really dumb policies.” Obama plans to have his AG review the available information to determine if investigations are needed.   Well, AG nominee Eric Holder knows that many crimes have been committed:

Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution…. We owe the American people a reckoning.

Indeed, the rule of law is the “strongbox that keeps all our other values safe.” We can write laws that say we have certain freedoms and rights, and we can build courts and elect lawmakers, but if there is no rule of law, then we lose our rights bit by bit until they are no longer recognizable.  This is one reason why budhydharma and Docudharma have drafted a petition asking Holder to appoint a Special Prosecutor to investigate and prosecute any government official who has participated in War Crimes.

While the goppies will cry “partisan witch hunt,” even the Bush State Dept. recognizes that no democratic society can tolerate abuses when people are tortured or kidnapped under rendition in violation of our rule of law or tolerate the failure to prosecute in compliance with our Constitution.

Signing the petition is not in defiance of our President-Elect Obama, but rather a sign of support for the difficult times that he and Holder will face when performing their clear constitutional duties.

As President, Obama will have the constitutional duty to faithfully execute our laws.  

The constitutional oath of office requires that our President faithfully execute the office of President and preserve, protect and defend our Constitution. Our constitution also requires that our presidents “shall take care that the laws be faithfully executed.”  The principle of the rule of law is partially based on this Faithfully Execute clause which requires our President to comply with laws, our Constitution and treaties because our Constitution established a government of laws, not of men and women.

The Geneva Convention is one of the laws which must be faithfully executed.

Our constitution mandates that treaties are one of the laws that the President must faithfully execute.  Moreover, treaties are recognized as one of our supreme laws of the land alongside our Constitution and federal laws.  For over 200 years, the federal courts have reaffirmed that our President is bound by the laws of war, which include conventions. In fact, both Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006) addressed the issue of whether the US government was violating the terms of the 1949 Geneva Convention.  Yet, some will whine that it is partisan to not exempt Bush from 200 years of precedent that governed presidents from both parties.

The Geneva Convention imposes a duty to prosecute former presidents who committed war crimes.

The Geneva Convention mandates that the US “search” for persons “alleged” to have committed or ordered the commission of “torture or inhuman treatment” and then prosecute in our courts or extradite to another country for prosecution. The “grave breaches” protected by the Convention also include the rendition or  “unlawful transfer of a non-prisoner of war from occupied territory.”

Rounding up the suspects is easy.

There is an overloaded plate of issues awaiting the leadership of President Obama. Fortunately, neither AG Holder nor an independent commission will have to spend a lot of time searching for alleged perps of war crimes.  This diary has pictures of some of the “persons of interest,” as Bush likes to say, who either have admitted their complicity in war crimes or may be percipient witnesses with useful information.

Bush and Cheney have already essentially publicly admitted their roles in authorizing and ordering torture. In Spring 2008, Bush admitted in an ABC interview that he approved “enhanced interrogation” techniques, including waterboarding:

“As a matter of fact,” Bush added, “I told the country we did that. And I told them it was legal. We had legal opinions that enabled us to do it.” The president added, “I didn’t have any problems at all trying to find out what Khalid Sheik Mohammed knew.”

In 2006, Cheney stated that dunking terrorism suspects in water was a “no-brainer” method of interrogation.  After a public outcry, Cheney denied that dunking was equivalent to waterboarding, but merely referenced a literal “dunk in the water.” Either way, Cheney is screwed because both waterboarding and water dunking is illegal under US and international law.  

In 2008, Cheney went even further by essentially admitting that he personally authorized the use of waterboarding and thus a war crime.  As constitutional law professor Jonathan Turley states, Bush and Cheney are banking that the public will not have the stomach to prosecute them.

We also know that high-level officials participated in approving interrogation methods at National Security Principals Committee meetings in the WH over the span of at least 2 years in which the CIA wanted approvals before conducting interrogation in individual cases.   Thus, we can add Rice, Rumsfeld, Powell, Tenet and Ashcroft to the list of “persons of interest.”

Tenet and Bush have both stated that waterboarding was legal based on a memorandum, known as the “Golden Shield,” because it was designed to shield CIA officers from liability.   The Golden Shield memo was written by John Yoo and approved by then-chief of the Office of Legal Counsel, Jay Bybee.   In 2004, the Golden Shield legal memo which authorized the interrogation program was withdrawn by Jack Goldsmith, who called the memo “slapdash” and “deeply flawed.”

More “persons of interest” can be found if Obama’s team reads the Senate Armed Services Committee report which concluded that high-level officials approved torture as an interrogation method.

Holder could also have a chat with Air Force Col. Morris Davis, a former prosecutor, who testified on behalf of a prisoner at Guantánamo that Brig. Gen. Thomas W. Hartmann “insisted that prosecutors proceed with evidence they had obtained through waterboarding and other methods of torture.”

The other benefit of war crimes prosecutions is that the Geneva Convention seems pretty clear that Bush can not whip out an executive order or pardon to immunize himself or his cronies from liability.  Article 51 of the Convention states that “[n]o High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article,” which is a reference to Article 50 that defines grave breaches.  

There may be some in DC who wish to avoid any investigations for fear of putative complicity, but this simply illustrates the bipartisan nature of any investigation. It’s not just the goppies:  For whatever reason, Senator Leahy declared that the Bush team would not face prosecution for war crimes in the US.   And, any investigation could reach some in the new Obama administration, like Robert Gates, for his role in Guantánamo and Iraqi prisons, “which the Washington Post described in a headline as ‘a Prison Full of Innocent Men,’ without even a procedure for determining their guilt or innocence–unquestionably a violation of the Geneva Conventions in and of itself.”  

If nothing else, our votes should have sent the message loud and clear to DC that Americans repudiate the past 8 lawless years and want a return to the rule of law.  For some, the way to return to the rule of law is to move forward without investigating crimes committed by Bushie and his sycophants who viewed the rule of law as malleable chunk of clay. However, political expediency as a reason to avoid prosecutions is also a violation of the rule of law that is based upon blind, nonpartisan justice.

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Cross posted at Docudharma.