Attempted Statutory Immunity For The Executive's War Crimes.

 

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.

 

Beyond all this, the claim of good faith reliance on counsel, like the cognate claim of being tasked or ordered to torture, kidnap or rend, and like the immunity provisions themselves, simply are an effort to escape the Nuremberg principles by saying that others said what the culprits were doing was okay.  Nuremberg established the principle that there are things that simply can’t be done, a principle later furthered in other treaties, conventions and cases.  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.  They have been and are seeking to do forbidden acts and then to escape punishment by retroactive immunity, including immunity based on the so-called advice of counsel.  They knew what they were doing was illegal, as evidenced by the extreme secrecy they practiced lest it be learned they were practicing, and lest they be accused of practicing, the crimes they were in fact practicing.  Morality, decency, and Nuremberg alike forbid this.

 

* * * * *

 

There is another question, one analogous to immunity, which has also arisen.  What if Bush, it is asked, before leaving office, were to pardon himself and all others involved in the crimes at issue?  The theory widely accepted is that the pardon power is absolute, so the President can pardon himself and anyone else for all crimes.  Some people feel the President cannot grant himself a pardon, precisely because he grants pardons - - the theory here being, I presume (but don’t actually know), that you can only grant something to someone else, not yourself.  (This is purely semantic and not very persuasive, I would think.)

 

The idea that a President has an absolute, unfettered ability to grant pardons does not strike me as persuasive.  Could a President order the mass murder of 5000 people and then allow the perpetrators and he himself to escape all punishment by pardoning them and himself?  The idea is preposterous and would mark the end of a government of laws.  Were such a pardon permissible, the law is at an end and we might as well all move to Canada -- or, as I believe Lincoln said, to Russia, where they take their tyranny straight, without the base alloy of hypocrisy.

 

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.*

   

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This posting represents the personal views of Lawrence R. Velvel.  If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com.  All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law.  If you wish your comment to remain private, you can email me at Velvel@VelvelOnNationalAffairs.com.   

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