That, apparently, is a concern now being taken seriously by Attorney General Gonzales, who is quietly working with senior White House officials and friendly members of Congress to do what murderous dictators in Chile, Argentina and other bloodthirsty regimes have done as their future in office began to look uncertain: pass laws exempting them from prosecution for murder.
Gonzales knows the seriousness of this threat. As he warned the president, in a January, 25, 2002 "Memorandum to the President" (published in full in the appendix of Barbara Olshansky's and my new book, "The Case for Impeachment"), "It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section [the US War Crimes law]." In another part of that same memo, Gonzales notes that the statute "prohibits the commission of a 'war crime'" by any U.S. official, with a war crime being defined as "any grave breach of" the Geneva Convention on the Treatment of Prisoners of War or of the Geneva Convention's Article 3. That article extends protection to combatants in other than official wars or formal armies. Gonzales, in that memo, also pointedly notes that the punishments for such violations, under U.S. law, in the event that mistreated captives die in custody, "include the death penalty."
What has the White House, and Bush's mob attorney, Gonzales, worried is the decision last month by the U.S. Supreme Court in Hamden v. Rumsfeld, which expressly established that the president has "violated" the Geneva Convention's Article 3 by arbitrarily deciding that captives in the so-called War on Terror and in Afghanistan, and held in Guantanamo, would not be considered POWs, and would not be accorded protection from torture or access to the courts as required under the Geneva Convention. This determination by a 5-3 majority of the US Supreme Court could easily provide the basis for the very "unwarranted" prosecution Gonzales warned about.
Of course, the president could not be indicted for this offense while in office. The Constitution provides a protection against that. But he could be indicted once his term ends. Meanwhile, other administration personnel, including the vice president, have no such protection against indictment even while in office.
It's interesting how this has become the tactic of choice for the criminals in the White House. When Bush was caught violating the clear provisions of the Foreign Intelligence Surveillance Act by authorizing spying by the National Security Agency on Americans' communications without a warrant, the administration went to Congress to seek legislation retroactively authorizing the crime. Since the president was exposed as having summarily and unconstitutionally invalidated some 800 laws passed by Congress through the use of what he calls "signing statements," an astonishing breach of the separation of powers, the administration has been seeking a new law in Congress that would in effect grant that power to presidents, again retroactively. Now Bush is apparently hoping to get the same compliant Republican-led House and Senate to backdate a law exempting him and his cohorts from punishment under the War Crimes statute--a law, ironically, passed almost without objection by both houses of a Republican-led Congress in 1996.
Of course, this attempt at a legal dodge might not work. Not only could a future prosecutor seek to have such a law ruled illegal itself (after all, the U.S. is a signatory of the Geneva Conventions, making them legally binding anyhow), but because the U.S. is a signatory of the Geneva Conventions prohibiting torture in any form, the president and his subordinates could also be charged as war criminals by other nations--particularly if it were determined that the U.S. was unwilling or legally unable to prosecute.
That could make things a little claustrophobic for administration personnel once they leave office.
No doubt Bush, Cheney, Rumsfeld et all would like to continue their world travels once they leave government "service." For one thing, there's lots of money to be made on the international speaking circuit. Lots more can be made by doing international business consulting. But if there were a threat of arrest and prosecution by prosecutors in countries like Spain, Germany or Canada, such travels would pose a huge risk. Similar fears have kept former National Security Director and Secretary of State Henry Kissinger pretty much housebound since a near detention in Paris on war crimes charges a few years back.
Gonzales' anxious behind-the-scenes scuttling about in the halls of Congress in an effort to save his boss's neck also suggests that the White House is getting anxious about the November election. After all, if they thought they had a secure grip on Congress through November 2008, why the sudden rush to get a bill through undermining the War Crimes statute now? Maybe Bush is afraid that if he waits until November, he'll be dealing with a Democratic House and/or Senate, which would be unlikely to grant him such legal protection.
There is a delicious irony in watching this law-and-order, let-'em-fry president and his tough-guy VP, attorney general and defense secretary, resorting to the same kind of dodgy legal tactics that they accuse convicted killers (and terrorists) of using in an attempt to avoid the gallows.