October 25, 2006 at 09:33:25

Of The Conference On Presidential Powers, And Stealth Immunity For Bushman

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By Lawrence Velvel (about the author) Page 2 of 3 page(s)

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The question of increasing Executive power is thought by some to be the most fraught and important issue facing the country. This is a point with which I agree, for reasons that will become clear below.

I believe this summary is reasonably accurate though very incomplete. A fuller summary, like access to the entire proceedings themselves, must await the preparation of DVDs of the conference, transcripts of it, and/or the publication of the proceedings in book form. The DVDs, which will not only be available as DVDs, but will also be put on the internet by MSL for viewing by computer and will be made downloadable by iPods, should be available in a matter of weeks. Transcripts, which will also be placed on line by MSL, will take a bit longer, and a book longer still. But these various means of modern communication will make the proceedings available in several ways for teachers, classes, and citizens who are interested in the subject of growing presidential power and want to know what some of the leading experts think.

One would especially hope that the materials will be used in colleges and universities. War, particularly long protracted wars, are the most affective upon this nation of all human events. What the Civil War and World War II meant for the daily lives of millions of citizens should be known and immediately comprehensible to any American who knows any history (a qualification which, I gather, would exclude most citizens these days, which is disastrous for the nation). Even wars that are less cataclysmic, though nonetheless long and major, have the most serious effects. Perhaps I can do no better in this regard than quote the opening paragraph of a book I wrote 36 years ago about the Viet Nam War:

"Vietnam." The very name is associated with crisis. For as even the least perceptive among us must know, the war in Vietnam has contributed a goodly share to several of the highly serious and deeply troubling crises which have been plaguing the United States. Most of the crises which have been caused or exacerbated by the war have been very noticeable to the public, and the war's effect upon them has been no less noticeable. For example, it is difficult to escape knowing that America has faced serious economic problems, such as inflation and balance of payments difficulties, which have resulted at least partly from our vast war expenditures. Equally apparent is the fact that the war has fueled a generation gap which has pitted many of our young people against many of their elders: the contending groups are locked in mutual lack of understanding, mutual distrust, mutual dislike, and mutual immoderation. It has been only too obvious that energy and money which have been poured into the war might otherwise have been spent to combat the poverty and urban decay which so plainly threaten our cities. By this diminution of the efforts to combat poverty and decay, by leading many blacks to bitterly, and perhaps even rightly, believe that the white man is perfectly willing to let them die for America in Vietnam but is not terribly willing to let them have adequate jobs or schools or houses in America itself, and by raising other difficulties both practical and ideological, the war has clearly heaped fuel upon the fire of an obtrusive racial crisis. The climate for lessening explosive international tensions plainly has suffered because of the war. And, unfortunately, this list of examples does not exhaust the catalogue of highly noticeable crises to which the Vietnam war has made a high noticeable contribution.

Even a war like Iraq which does not on an immediate level engage most Americans, a war whose burden falls on relatively few, a war which the President reprehensibly and for political purposes has "responded" to by telling people to go on living their lives in the ordinary way, creates havoc despite its lack of practical effect on most people. Our politics, our civil liberties, our now longstanding, well warranted disdain for government have all been worsened by the present botching by Bush.

Plainly, the causes, reasons for, and ways of avoiding and getting out of war are subjects which the colleges and universities of this country should study and teach. One of the most affective phenomena in getting our country into one war after another has been precisely the growth of presidential power that was discussed at the conference at MSL. Such growth is, for this reason as well as others, one of the crucial subjects for colleges and universities. Thus, to reiterate, one hopes that they will make use of what will soon be the wide availability of the materials from the conference held on October 14th and 15th.

* * * * *

The matter of the immunity provided to criminals in the recently enacted Military Commissions Act of 2006 raised especial ire at the conference. For the first time in American history, the Congress has provided immunity for the perpetrators of torture -- even murderers by torture -- and other horrible crimes, e.g., kidnapping even innocent people off the streets and delivering them to countries like Syria and Uzbekistan for torture.

The provision which immunizes this awful conduct, you know, did not receive nearly as much media coverage in advance as did the habeas corpus and military tribunal provisions of the bill. That, at least, is one man's opinion, and in fact I think it received but little coverage. It basically was snuck in and enacted mainly by stealth - - not exclusively by stealth, but mainly by it. No doubt the stealth served the Executive's purposes perfectly. For were it to have come extensively to public notice that for the first time the Congress was granting immunity to serious crimes, there might have been an outcry. Indeed, there almost surely would have been a vast outcry on the left and perhaps in the center as well, had most persons on the left and in the center known what was happening. (Maybe I am wrong but, as you can see from the foregoing remarks, my view is that there was relatively little public comprehension of what was occurring. This view seemed borne out even at the conference of experts on presidential power: even experts did not know what was going down.) Bush, having desired, authorized and known about torture from the beginning, and therefore being guilty of felonies under the domestic American law known as the Anti-Torture Statute, must have been perfectly delighted that the immunity provision was able to fly under the radar. One of the points made at the conference was that evil, like mushrooms, grows in the dark. Secrecy is, for certain, the handmaiden of evil. Flying under the radar is perhaps next best to enforced secrecy itself.

But now that the immunity provision has been enacted, just what does it mean. That is, exactly whom does it cover, and for what acts. I confess to not understanding it completely. It is written in lawyerese, with exceptions delimited by numerical references to other statutes entirely. The media seem generally to say the act gives immunity to the CIA but not the military. Maybe that's right, although the wording would seem broad enough to cover the military and all other relevant persons too (unless the exceptions clause at the beginning of the relevant section means the military are not covered). But search me as to who's covered. It would be nice if someone knowledgeable would explain exactly who is, who isn't and why.

To given you more information of relevance, the Act says that (with exceptions that are unclear to me) "no court" "shall have jurisdiction to hear or consider" any action against the "United States or its agents 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."

This language would not seem to give complete immunity to Bushman and his fellow gorillas in the Executive, as will be discussed below.

Let us start with something the language does not do. It does not say that what Bushman and his tribe of gorillas authorized, desired and/or did is not a crime. Torture of persons abroad remains a felony under federal law, although the new Act removes the jurisdiction of courts to hear cases on the crime and has thus eliminated courts' ability to punish perpetrators. For the layman it will doubtless be hard to grasp how there can be a crime when an act cannot be punished. Such legal absurdities are common; they occur, for example, when a statute of limitations has run, even on murder. Beyond this, there will remain, as we shall see, certain situations in which it seems the gorillas are chargeable with crimes and punishable -- and can be made defendants in civil actions too. As well, authorizing torture, as Bushman did -- and which led to murder -- of course remains an impeachable offense. "All" that is lacking in this regard is political will and native intelligence: Apparently it was no good for Bill Clinton to receive fellatio in the oval office -- which surely was a disgrace -- but it is alright for Bushman to authorize torture and murder there.

The statute also grants immunity only when the tortured person is an alien. Now, this may be of little practical import because most of the people we tortured were aliens. But perhaps not all. It is possible that a few people whom we tortured abroad were Americans. (Did we torture John Walker Lindh abroad? There are some who in effect claim so, I think.)

Then there is also the question of actions by states, or by individuals, under state laws if torture was authorized, conspired about, or committed within a given state. (The federal Anti-Torture Statute only applies to torture abroad; punishment of acts committed in the United States was, I have read, left to state laws against assault, battery and murder. No doubt the Executive gorillas and their lawyers would argue that, when Congress said that "no court" shall have jurisdiction to hear torture cases, it included state courts as well as federal ones. But whether this argument could withstand serious legal analysis is very questionable (for much the same reasons that a federal law overriding state "tort" laws against deliberate or negligent misconduct by manufacturers that injures or kills people -- the kind of law sought by big business' tort lawyer shills -- is questionable). The founders of this country would never have dreamed that a federal law could override state laws against assault, battery and murder, and their view certainly ought to prevail here.

The question regarding state court actions is not in truth one of law. It is more a question of what state prosecutors and state courts would or would not do as a political matter. Practically speaking, it seems a safe bet that, at least today, state prosecutors would not act against American torturers and murderers, nor would state judges fail to find some reason, however spurious, to dismiss cases brought by the tortured or by heirs of the murdered. Whether or not all this will be equally true ten or twenty years from today indeed, whether the federal immunity law will still be on the books ten or twenty years from now -- remains to be seen. For what people's views will be when Bushman is long gone remains to be seen. There have been major turnarounds in view previously -- Massachusetts, Illinois, California (and perhaps some other states too, if memory serves) ultimately tried (albeit unsuccessfully) to assert state jurisdiction in order to put an end to the Viet Nam War, attempting this in the face of decades of belief that it could not be done. As the Attorney General of New York, Elliot Spitzer began bringing successful cases against Wall Street, cases of a type that had long been thought the exclusive province of the federal government. One never knows what people might be moved to do in future decades if moved to utter disgust, as they likely will be, by what Bushman and his gorillas did in the early years of the new century.

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http://velvelonnationalaffairs.com/

Lawrence R. Velvel is the Dean of the Massachusetts School of Law, which educates the working class, mid-life people, minorities and immigrants. He (more...)

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