By now it seems beyond serious doubt that George Bush and company committed numerous war crimes. There has now been book after book detailing their actions; some of the books are legal in character, even when directed at a much broader audience than lawyers, while others are not legal in nature (e.g., Charlie Savage’s and Jane Mayer’s). The question now, in reality, is not whether crimes have been committed. It is, rather, what if anything to do about them. Suggestions range from doing nothing, to a truth and reconciliation commission, to Congressional hearings (ala the Church committee), to criminal trials before state, federal, foreign or international courts, to civil suits for damages brought by injured persons (e.g., innocent persons -- some of whom are Americans) who were detained for months or years and/or physically abused or tortured.
I shall deal here only with certain matters relevant to criminal trials in American courts and possibly relevant, to some extent, to civil trials for damages in domestic courts.
Based on fairly extensive readings from about 2002-2003 until today, it seems pretty clear that people who were responsible for or committed torture were well aware from the get - go that what they were doing constituted crimes. That realization is why CIA officials, from 2002 to 2006 or 2007 demanded memoranda, from the Office of Legal Counsel of the Department of Justice, falsely claiming that the abuse and torture were not criminal acts. The officials wanted these OLC memos so that they could later avoid or defeat prosecutions by claiming that the decisionmaking office of the DOJ had approved the legality of what they were doing. The officials wanted a “golden shield,” a “get out of jail free card.”
As well, knowledge that the acts and Justice Department memoranda supporting them would be strongly opposed if they came to light were among the crucial reasons the acts and supporting memos were kept secret for years. The opposition, it was well understood, would be based both on American concepts of morality and the fact that the acts were violations of both international criminal law and domestic criminal law. It was understood by perpetrators and legal enablers of torture that many lawyers in the Executive Branch and the military would be among the strong opponents of what was being done -- lawyers such as the generals and admirals who were the military JAGs, certain armed forces General Counsels, State Department lawyers, and DOJ lawyers. Thus these lawyers were kept out of the loop to the maximum extent possible. Information was kept on “a close hold” or “a very close hold,” information was confined to as few people as possible, so that there would be no knowledge, or as little knowledge as possible, on the part of those who would object to the criminal acts. The perpetrators and enablers feared the objectors would say the acts were criminal, would say so internally if not externally and, in some cases (e.g., if opponents were legislators), might publicly denounce and condemn the actions as criminal.
It is, frankly, impossible to overestimate the crucial importance of, and concern for, secrecy to hide the criminal acts. It was well understood that what was being done could not be done if there were widespread knowledge of it. While the Executive likes to claim that secrecy was essential lest terrorists learn what was being done and prepare themselves for it -- the type of claim that in the last few years has been made to cover many Executive misdeeds -- it is at least equally if not more true that secrecy was employed because of knowledge that torture and abuse would have to end - - because they would be seen as both immoral and criminal -- when and if they and their supporting DOJ memos became widely known.
And, after the immoral and criminal actions did become widely known, the Executive Branch, via the vociferous demands of Dick Cheney, and with the cooperation of a complaisant John McCain, obtained what it hoped would be immunity for its criminal conduct. This was done in two statutory sections. The “McCain Amendment” to the Detainee Treatment Act of 2005 provides that in any criminal or civil case arising out of “specific operational practices” involving “detention and interrogation of aliens” whom Bush or his agents “believe[] to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States . . . and that were officially authorized and determined to be lawful at the time that they were conducted,” it will be a defense that the defendant “did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.” In determining whether an ordinary person would know the practices are unlawful, the McCain Amendment tells courts that “an important factor” to consider is “Good faith reliance on advice of counsel.”
The other immunity-creating provision is Section 7(e) of the Military Commissions Act of 2006. Subsection (1) of the Section provides that no court can grant habeas corpus to an “alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Subsection (2) says no court “shall have jurisdiction to hear or consider any other action . . . relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” (Emphasis added.)
The first part of Section 7(e) of the Military Commissions Act of 2006 -- i.e., the “no habeas corpus” provision of 7(e)(1) -- was struck down by the Supreme Court in the Boumediene case in 2008. At least some experts say it is not totally clear whether the second part of the Section was also struck down, i.e, whether Subsection 7(e)(2), barring any action other than habeas corpus, was also struck down by the Boumediene decision. I shall assume for purposes of discussion that the Boumediene case did not itself strike down the second subsection, but instead left its legality to be determined in the future.
When one reads the two immunity provisions closely, it is obvious that there are certain holes in the immunity they might otherwise give. For example, the provisions give immunity only where the victim was an alien, not where he (or she?) was a citizen. But there were large numbers of citizens who got detained, got questioned, and in lots of cases were abused or even tortured. Also, the McCain amendment gives immunity only where the acts of abuse or torture were officially authorized and determined to be lawful at the time they were done. But there were lots of acts, apparently, that, when done, either had not yet been officially authorized, or had not been determined lawful, or both.
As well, the second subsection of the Military Commissions Act gives immunity only if the alien has been “determined . . . to have been properly detained as an enemy combatant or is awaiting such determination.” But numerous people who were abused or tortured have now been released without any determination that they were enemy combatants. (Indeed, a court could find that there is no such legal category as “enemy combatant” -- in reality there isn’t; it was something that was simply made up by the Executive -- so that the provision is in effect a nullity because it gives immunity only for a category that does not lawfully exist.)
There is also a so-called “preemption” issue. The wording of the two statutes does not distinguish between federal courts and state courts, but instead seem to confer immunity in any court. But can this be done? Can the federal government preemptively immunize Bush and company from liability for murder under state law -- the crime for which Vincent Bugliosi says Bush and his henchman could and should be prosecuted in state courts?
But aside from the obvious holes in the statute, there is also a broader point, one that, at least morally speaking, and perhaps legally speaking too, is far more important. It goes something like this: Can a person, knowing that acts are unlawful, engage in those acts and then obtain immunity by exercising power over the legislative process and by finding lawyers who are willing to write the most incompetent and atrocious legal opinions designed to give the guilty a get out of jail free card?
It is evident that if these things can be done, then there is an end of law where the truly wealthy and powerful are concerned. Whether it is Al Capone or Dick Cheney, the filthy rich or obscenely powerful will have it in their power to do the most awful things yet escape the law by using contributions or power to obtain immunity from preexisting law and to buy the opinions of immoral lawyers. That is the moral and philosophical basis why these things can’t be permitted. What the precise legal rationale would be is something I’m not sure of, is something on which research must be done. Perhaps there is some constitutional argument about perverting the legislative process -- which, however, is often perverted -- or some so-called “equitable” doctrine, or some (long forgotten?) doctrine of criminal law, which bars this kind of societal distortion. Or perhaps there is some theory which sets aside immunity if the provision granting it is the product of what in effect is a criminal enterprise. I myself am not sure of what the legal grounds would be, but I do feel that the immunity here is impermissible, and that a legal methodology must be found to render it impermissible, if we are to have a country of laws.
The issue of acting on advice of counsel raises additional questions. It is widely thought that there are perhaps six to ten lawyers who are guilty of crimes because they facilitated, they enabled, the criminal conduct perpetrated by torturers. The names Yoo, Addington, Haynes, Gonzalez, Flanigan, Bradbury, Bybee are among those that leap to mind. These people cannot claim advice of counsel; they were the counsel who were doing the advising and were drafting get out of jail free cards for others. They also knew that what they were advising was illegal, which was one of the main reasons they kept everything a close hold and insured secrecy so that Executive lawyers and officials who would object to their advice as immoral and unlawful would not learn what they were doing.
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