Kit and Eric ''Blago'' the Attorney-General Confirmation
Last week, President Obama's new Attorney-General, Eric H. Holder, assured senior Republican senators who were withholding their support for his nomination that he is not likely to prosecute CIA officers or political appointees who were involved in the Bush administration's policies allowing torture and violations of the Geneva Conventions and U.S. federal law.
After Holder gave that reassurance, Republican senators helped to confirm him for the highest law enforcement office in the land.
Republican Senator Christopher "Kit" Bond of Missouri, the vice chair of the Senate Select Committee on Intelligence, opposed Holder's nomination until, Bond says,
Holder assured him privately that as Attorney-General, he will not prosecute former Bush officials who used or allowed torture while interrogating U.S. prisoners suspected of committing "terrorist" violence. Bond said that Holder "gave me assurances that he would not take those steps that would cause major disruptions in our intelligence system or cause political warfare. We don't need that kind of political warfare. He gave me assurances he is looking forward."
Eric Holder denies that he promised not to prosecute American torturers. In a written response
to a question from Arizona Senator Jon Kyl, Holder said: "Prosecutorial and investigative judgments must depend on the facts, and no one is above the law. But where it is clear that a government agent has acted in 'reasonable and good-faith reliance on Justice Department legal opinions' authoritatively permitting his conduct, I would find it difficult to justify commencing a full-blown criminal investigation, let alone a prosecution."
This slick response ignores the Nuremberg Principles
, where no one is excused from commission of war crimes merely because they were following orders - even if they actually believed that John Yoo's junk-logic legal opinions enabling torture were somehow "authoritative" (Obama's incoming head lawyer of the Office
of Legal Counsel, Dawn Johnsen
, has called the Bush torture memos "egregious" and "dangerously flawed"). Eric Holder unmistakably signaled in his carefully-worded written response that there will be no torture prosecutions, apparently not even for the high Bush Administration figures who provided legal-sounding "authoritative" cover to torture, although they cannot duck direct criminal responsibility for unilaterally ignoring the War Crimes Act
Apart from the appalling spectacle of U.S. senators conspiring with a political aspirant to compromise the best opportunity for this country to demonstrate anew to the world an official belief in the rule of law; aside from giving the murderers of over 100 tortured prisoners
a free pass for their callous violations of the federal War Crimes Act too (the torture memos didn't sanction murder) - the odious deal to vote for Holder in exchange for his semaphore that he won't prosecute comes close to fitting the elements of the federal felony crime of bribery of a public official - much closer than the nation's chief law enforcement officer should come.
Subsection (b)(1) of Title 18, Section 201 of the United States Code
makes it a crime for someone to "directly or indirectly, corruptly give, offer or promise. . . any person who has been selected to be a public official... with intent to influence any official act or to induce ... such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such. . . person." Subsection (b)(2) of the same statute
states that "whoever being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for . . . being influenced in the performance of any official act . . .or being induced to do or omit to do any act in violation of the official duty of such official or person" has completed the crime of bribery.
Conditioning one's vote for confirmation on a pledge of no prosecutions of highly-visible war crimes, and responding to a question in flowery lawtalk that relies on egregious, dangerously flawed legal advice is not conventional "horse-trading" politics. We have just witnessed the circus impeachment of Governor Blagojevich for soliciting bribes by putting an explicit price on his appointment power over the office of U.S. Senator. Similar to ex-Governor Blago's antics, Bond's and Holder's pre-emptive plea bargain put an illegal price on the confirmation of Attorney-General of the United States. It made a commodity out of the Attorney-General's obligation to uphold the laws and the Constitution. And that commodity was then auctioned off in pieces in response to market requirements.
This disturbing tradeoff took place in plain sight. It produced something "of value" for Eric Holder, and for those members of the criminal syndicate formerly known as the Bush administration, whose violations of federal prohibitions against torture and the War Crimes Act will now go un-indicted and unpunished.
And it is outrageous. The public lost something of incalculable value when Torture Nation was transformed into items of commerce, instead of becoming an unconditional mission to restore the rule of law.
Terry Lodge is an attorney in Toledo, Ohio, specializing in employment and environmental law. An activist for many years, he has contributed to several antinuclear lawsuits, including Divine Strake in Nevada in 2007 and the MOX case in Michigan in (more...
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