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September 4, 2008 at 13:52:16
Promoted to Headline (H3) on 9/4/08: by Lawrence Velvel Page 1 of 2 page(s) |
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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.
Guys like Cheney and Bush shouldn’t be able to plead good faith reliance on the advice of counsel either, because they told the counsel what advice to give. Could Al Capone or Lucky Luciano receive immunity for acting in accordance with the advice of counsel when they told counsel what to advise? Not to mention that, rather than acting in good faith reliance on the advice of counsel, Cheney and Bush knew that they were ordering violations of law. The fact that they were doing so, and were well aware they were doing so, was one of the reasons why they, like a significant number of CIA officials who knew the same, demanded that lawyers produce legal cover for them in the form of OLC memos authored by the likes of Yoo and Bradbury.
Then there is the situation of the lower level CIA and military people -- persons in the chain of command and/or who committed the torture and the renditions for torture. These people did not read the Yooian type memos -- actually a lot of involved higher level people didn’t either -- so they cannot claim direct reliance on advice of counsel. But, high level or low, no doubt they were told that torture was approved by lawyers. Nonetheless, these people too cannot claim good faith reliance on the advice of counsel. For they had to know that torture was forbidden no matter what some lawyers said. You could not grow up in America and not know this. (Would someone be allowed to successfully claim to have thought murder was lawful because some lawyer told him so?) People who grew up in America cannot realistically claim that they thought it was lawful to beat people mercilessly, to smash their heads against walls, to kill about one hundred of them apparently, to hang them from ceiling hooks, to make them freeze, to deny them sleep for weeks on end, and so forth. I don’t care what they were told lawyers supposedly had said. They knew what they were doing was wrong. FBI and NCIS guys on the scene knew it regardless of what lawyers like Yoo said, and it was knowledge that what they were doing was wrong that caused some lower level CIA guys too to want a get out of jail free card.
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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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| 14 comments |
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Best news all year?
It made my day this morning reading that Joe Biden announced that if elected in November he and Obama may pursue criminal investigations of members of the Bush Administration where warranted. It's about time we heard this from an American politician, and if it were the only promise on the platform should be well enough to to get them elected by a landslide. Thanks, Mr. Biden, for the ray of hope so many true-hearted freedom-loving Americans have been waiting so very long for. by Cassie (0 articles, 0 quicklinks, 1 diaries, 15 comments) on Thursday, Sep 4, 2008 at 2:17:02 PM  (0+)
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Reply: Thing about the word "may" in a sentence is that
it is perfectly compatible and exchangeable with "may not". by Brett Paatsch (0 articles, 3 quicklinks, 23 diaries, 1308 comments) on Thursday, Sep 4, 2008 at 9:51:03 PM (0+)
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Mr. Velvel, A Flurry of Executive Signings and Orders...
...are emanating from every corner of the executive and chains of command/procedure are being altered to direct most investigative/reporting activity through department Cousel to the Justice, instead of through the usual bureaucratic organizational structure. Has the Justice Department been irrevocably corrupted? by Amanda Lang (23 articles, 14528 quicklinks, 442 diaries, 731 comments [17 recommended, 0 rejected]) on Thursday, Sep 4, 2008 at 5:03:15 PM (0+)
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These rats have proven that they will try anything
Regarding your question of "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?", the concept of ex post facto law immediately comes to mind. In the case of Calder v. Bull, 3 U.S. 386 (1798)[1], Justice James Iredell stated that: "There are then but two rights, in which the subject can be viewed: 1st. If the Legislature pursue the authority delegated to them, their acts are valid...they exercise the discretion vested in them by the people, to whom alone they are responsible for the faithful discharge of their trust... 2nd. If they transgress the boundaries of that authority, their acts are invalid...they violate a fundamental law, which must be our guide, whenever we are called upon as judges to determine the validity of a legislative act." by Raphael Sidelman (6 articles, 0 quicklinks, 1 diaries, 42 comments [16 recommended, 0 rejected]) on Thursday, Sep 4, 2008 at 8:54:13 PM (0+)
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Reply: Impeachment
Yes, In my previous comment I was assuming that after impeachment, the senate would vote to convict the guilty party. by Raphael Sidelman (6 articles, 0 quicklinks, 1 diaries, 42 comments [16 recommended, 0 rejected]) on Thursday, Sep 4, 2008 at 9:05:54 PM (0+)
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Impeachment and removal ARE the limits to the pardoning
power. So there must be some limits to the pardoning power. No doubt they are inherent in the history of the original creation of the power (perhaps in England?), a history I know nothing of and have never seen reference to. We need research on the subject. Perhaps the research will show that there cannot be a pardon for the President’s own criminal acts or for other persons who helped him carry out his criminal acts. Perhaps it will show other limits. But it is not really possible that the pardoning power lets a President commit whatever crimes he chooses, no matter how heinous and obviously unlawful, and then pardon himself as well as all others who helped him carry out atrocious illegal acts like killing hundreds or thousands of people. A claim of such unfettered power defies common sense. Whilst it is good to see people with knowledge of the law writing on these topics I am surprised that the author keeps casting around for research or ancient forgotten doctrine. The US Constitution is the bedrock of US law. The President is supposed to be inbued with considerable executive power and the pardon power is supposed to be very strong and checked by the impeachment process. The check and balances are in the Constitution but no government of, by and for the people can contain mystical back door powers that can rescue the people when the people themselves, through their representatives don't want to accept the burden of citizenship. Law is not mystical or magical in the end, what upholds it, and confidence in it, is the people themselves. Or nothing does. The English law that you seem to cast a hopeful look towards would of necessity be older law than the US Constitution itself. Whilst habeas corpus goes to the Magna Carter, habeas corpus is specifically mentioned in the US Constitution and so incorporated. The English law of pre US Constitutional times was, law from a nation that still had hereditary rather than representative government. How much wisdom is one realistically going to find from a tradition so close to the notion of kings having a divine mandate? Its impeachment and removal unfortunately that are the limits to the pardoning power - to look for more is to look and hope for a second mystical chance when one knows that the citizens have not used the prescribed tools. by Brett Paatsch (0 articles, 3 quicklinks, 23 diaries, 1308 comments) on Thursday, Sep 4, 2008 at 10:08:02 PM (0+)
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great post...
This is probably the most well written argument that I have yet read as to the justification for impeachment based on the PAST actions of this administration. I have a different point to make: IMHO the single most important reason to IMPEACH NOW has nothing to do with their past actions but the future. And by that I mean that if left in power these f*cking power mad LUNATICS will get us into a war with Iran, Russia, and China. The end result of that war could very easily and very soon be a nuclear annhilation of the US homeland with the death of 100's of MILLIONS of American citizens. And so there new lame ass slogan is "Country First". Well I think preventing the death of 100's of millions of American citizens via impeachment is definitely putting "Country First"~ by Ben Marble, M.D. (23 articles, 0 quicklinks, 230 diaries, 349 comments [3 recommended, 0 rejected]) on Thursday, Sep 4, 2008 at 11:05:26 PM (0+)
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Remarks are cogent, informed, legally valid
Comment from Ratings: Here is one commenter I would be willing to pay if I had any money. by martinweiss (41 articles, 6 quicklinks, 13 diaries, 503 comments [3 recommended, 0 rejected]) on Friday, Sep 5, 2008 at 12:35:25 AM (0+)
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pre-emptive immunity?
As the jackbooted thug police do "pre-emptive arrests" in Minneapolis/St, Paul, likewise has the Bush administration planned pre-emptive immunity for themselves? Repeal the Patriot Act, and they will be toast. Until then, they will build on that unconstitutional act and the follow up acts. This country will never be the same after what happened in MN this week. Basically if you are a liberal activist(Hillary's despised group--a reminder)as I am, I can expect my computer to be removed someday, with a whim of thug agents. I can expect my phone bill to be summoned to a tribunal, I can expect my bones hauled off to some detention center and all this for practicing my constitutional right and owning MY OWN opinion and not being a gulled minion of Bushonomics. Send the ACLU a donation...they need about 1000 more lawyers for these civil rights violations that have gone down this week and last week. by shirley reese (0 articles, 0 quicklinks, 0 diaries, 592 comments [98 recommended, 1 rejected]) on Friday, Sep 5, 2008 at 12:41:33 AM (0+)
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War Crimes
Extradite all those involved to Fallujah, Iraq, and let the victims try them there and apply their own justice! by Keith Howe (2 articles, 0 quicklinks, 0 diaries, 13 comments) on Friday, Sep 5, 2008 at 2:01:21 AM (0+)
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Reply: I'd sure like to...
But, unfortunately, rendition is a war crime under provisions of the Uniform Code of Military Justice. by martinweiss (41 articles, 6 quicklinks, 13 diaries, 503 comments [3 recommended, 0 rejected]) on Friday, Sep 5, 2008 at 6:29:41 AM (0+)
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Why Legal Action Instead of Councils of Reconciliation?
"Nuremberg also established that one cannot rely on the defense that one is merely doing what others said to do. But claiming that their actions were immune because others okayed them is precisely what Cheney, Bush, their whole crowd, and even McCain have been attempting to do." And even McCain... by GLloyd Rowsey (104 articles, 65 quicklinks, 60 diaries, 828 comments [4 recommended, 0 rejected]) on Friday, Sep 5, 2008 at 8:49:40 AM (0+)
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And, Dean Velvel:
This is the most encouraging article I've read in a very long time! Your emphasis on secrecy, as opposed to the "Propaganda Model" and responsible leftist emphases on -- Oh, we know all the relevant information, we're just brainwashed -- and "black holes of history" implying that before the media decides to black-hole the facts, well, the facts were.... Knowable, you know? But as you point out, the perps would not have done the deeds had they not been able to rely on virtually, or at least effectively, total secrecy. From which I deduce, that after that, who can reverse those deeds? (Frankly, I'd be surprised if there weren't an enormously GREATER proportion of documents pertaining to governmental activities secret now than ever before. But careful, Dean Velvel and like minded secrecy "nuts": down this road lies charges of "Conspiracy Freak" and "paranoid delusional.") In any case, perhaps Rob Kall will be interested in putting up my "The Political Economy of Secrecy - Information, Power, and Capitalism (1978)". It's from the dark ages. But as they say, the past is prologue. The PEofS is actually the opposite of raving - it (too?) quietly traces the role of information differentials in four major areas of our system of Free Enterprise Capitalism and Democracy. Thank you again, Dean and Professor Lawrence Velvel. by GLloyd Rowsey (104 articles, 65 quicklinks, 60 diaries, 828 comments [4 recommended, 0 rejected]) on Friday, Sep 5, 2008 at 3:39:53 PM (0+)
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Think I'll send this..
...to some of my Naderite friends who keep trying to tell me there's NO difference between Democrats and Repugs. THIS is what we need to vote against in November, using ANY means to REMOVE these B*stards from office and proscecute them. A vote for any third party just ain't gonna get it, no matter what your "Principles" are! It IS what it IS, and this time it's SURVIVAL. by Bia Winter (6 articles, 2 quicklinks, 14 diaries, 767 comments [121 recommended, 0 rejected]) on Saturday, Sep 6, 2008 at 9:26:18 AM (0+)
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