Maybe the trial should be in Nuremberg

Posted Friday, Nov. 10, 2006
"Just days after his resignation, Defense Secretary Donald Rumsfeld is about to face more repercussions for his involvement in the troubled wars in Iraq and Afghanistan. New legal documents, to be filed next week with Germany's top prosecutor, will seek a criminal investigation and prosecution of Rumsfeld, along with Attorney General Alberto Gonzales, former CIA director George Tenet and other senior U.S. civilian and military officers, for their alleged roles in abuses committed at Iraq's Abu Ghraib prison and at the U.S. detention facility at Guantanamo Bay, Cuba." Time Magazine

To say the least, there is considerable irony in the idea of German prosecution of American war crimes. The prospect of German legal proceedings against Rumsfeld, Gonzales, Carbone and others first surfaced two years ago and caused a diplomatic dust-up because of its effect on Rumsfeld's plan to attend a conference in Munich. Rumsfeld, now operating ex officio, is not faced with that difficulty anymore, although it's unlikely he's planning any idyllic sojourns in the Bavarian Alps at present. That case was terminated by the Germans on the theory the USA would deal with its own war criminals in its own way, under the complex network of American federal statutes which deal with torture and violations of the Geneva Conventions (the War Crimes Act). No doubt this rather fanciful notion served diplomatic purposes of the moment, and could not have been reflective of actual German sentiment.

Under Germany's Code of Crimes Against International Law, which was introduced in 2002, German courts have universal jurisdiction in war crimes and crimes against humanity. As another instance of irony, the U.S. largely led the way in establishing international precedent for the prosecution of war crimes following World War II, and presumably the Germans, once hoist on this petard themselves, would draw on the principles as the textual basis for a prosecution of alleged American war crimes. The USA, as noted, carries the same general principles on its own books as part of the War Crimes Act, the federal Anti-Torture Statute and the recently enacted Detainee Treatment Act (McCain bill) applying the anti-torture statute to all detainees in U.S. custody, whether or not designated "enemy combatants," an extension solidified by the decision in Hamdan vs. Rumsfeld, in which the Supreme Court clarified the applicability of the Geneva Conventions to human beings in general, despite the strenuous efforts of Bush's Torture Brigade to create a special class of Untermenschen upon whom any atrocity or depraved act could be practiced with impunity, rather like another polity between 1933 and 1945.

The Supreme Court, having brought Bush up short with its Hamdan decision, motivated The Decider to decide to seek a get-out-of-jail free card in his Military Commissions Act. You may recall from an earlier Swim in the Pond that Bush was vociferous in his need, expressed in September, 2006, to get on with immediate trials at Guantanamo for his high value detainees being shipped there even as he spoke. Without risking too much sarcasm, one might note that (a) no trials are currently underway, as the Bush Administration fights mightily to deprive the inmates of counsel on the basis of Kafkaesque arguments also previously detailed, and (2) the real deadline Bush was up against was November 8, 2006, election day, when his pet Congress might turn a little unruly. The sole purpose of the MCA can be stated in the following, innocent-looking citations (the first is from the Military Commissions Act):

"(b) PROTECTION OF PERSONNEL.—Section 1004 of the Detainee
Treatment Act of 2005 (42 U.S.C. 2000dd–1) shall apply with respect
to any criminal prosecution that—
(1) relates to the detention and interrogation of aliens
described in such section;
(2) is grounded in section 2441(c)(3) of title 18, United
States Code; and
(3) relates to actions occurring between September 11,
2001, and December 30, 2005.

(The cited section from the Detainee Treatment Act reads in full as follows:)

SEC. 1004. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN AUTHORIZED INTERROGATIONS.

(a) Protection of United States Government Personnel- In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities. (Italics added.)"

Neat, huh? Without actually ever mentioning the words "exculpation" or "exoneration" in the Military Commissions Act, Bush completes his task of artful dodging by incorporating another no-worries the Republicans gladly handed him. And the italicized language is simply priceless. Bush will rely on the advice of the High Inquisitioner himself, Alberto Gonzalez, aided and abetted by John Yoo (another potential German defendant, and a person who sullies the proud traditions of UC Berkeley), as part of his airtight defense against prosecution for War Crimes under American law. Alberto, in that memo I asked him to put together to justify torture of "enemy combatants," told me it was okay to torture enemy combatants. So how could I have been doing anything wrong? Our noble President: craven, sneaky, dishonest, irresponsible to the very last. What a role model!

Under these circumstances, the Germans, who now have the assistance of the U.S. legal team representing Guantanamo prisoners (Michael Ratner and the Lawyers for Constitutional Rights), and Janet Karpinski, the military fall-woman for the abuses of Abu Ghraib, can perhaps be excused from their earlier decision to exercise, as they say, judicial restraint. Not only does the United States have no intention of ever prosecuting anyone for war crimes, at least under present arrangements; the Congress is actively engaged in making sure the whole thing is covered up.

It's simply shameful. Why, the Germans and the rest of the civilized world may ask, should the United States actively shield war criminals from the consequences of their actions? The German High Command, at least, could argue they were being charged with crimes that were not on anyone's books. Rumsfeld and his ilk violated statutes and the clear provisions of the Geneva Conventions in existence long before they took that road to the "dark side." And no, Mr. Bush - Common Article 3 is not "vague"--it is intentionally general, because it forbids indecent acts, and any decent person understands that what went on at Abu Ghraib, what has gone on in Afghanistan and Guantanamo, what has happened in all those secret CIA dungeons, degrades and debases the United States of America and the legal principles on which it was founded.

An Open Letter to Nancy Pelosi

Dear Representative Pelosi:

Congratulations on your ascension to the Speakership of the House of Representatives. Like many other Northern Californians, I have watched the progress of your career from the Board of Supervisors in San Francisco to a position just two steps removed from the presidency. Throughout your career, you have conducted yourself, from everything I have been able to observe, with intelligence, grace, dignity and a sense of fair play.

I can understand, after 6 years of Bush's shameful leadership, your impulse to right the ship of state and proceed with a series of domestic and foreign legislative initiatives designed to assist ordinary Americans and to restore a sense of honor to America's standing in the world community. It is as if to say that the first task of the Democrats is to assure that the blood is made no redder, and that ameliorative steps, such as ethics reform, raising the minimum wage, funding stem cell research, taking real steps to deal with the existential threat of global warming, leveling the unfair playing field of trade agreements and other measures are urgent and must be delayed no further.

However, I take issue with your immediate reiteration (stated first during the campaign) that the impeachment of George W. Bush is "off the table." It is as if you have consigned this Constitutional perogative of the Congress to the trash bin of "politics as usual" or excessive "partisanship," and that from your perspective the fresh breeze blowing through Washington, D.C. is "about" (to use that overworked preposition) bipartisanship and cooperation "for the good of the American people." I have no doubt that your experience in politics makes you a far more savvy interpreter of political movements than I could ever hope to be. But I can't help feeling that you are succumbing, almost immediately, to an inside-the-Beltway style of business as usual, this time under the guise of a populist agenda of "reform," without really rocking the boat.

I think the boat needs rocking. I agreed with your assessments of President Bush made before the feel-good spectacle of the last couple of days; to wit, that he is chief Docent of the Republican "Culture of Corruption," that he is "incompetent," and that he is a "naked emperor." Your words, not ours, but about 70% of the American public agrees with you completely. The evidence in support of your evaluation is overwhelming. In fewer than six years:

Bush has left the Bill of Rights in tatters. He has destroyed the concept of the presumption of innocence. His despicable, junta-like disappearing of American citizens, such as (but not limited to) Jose Padilla as part of an undeclared "war on terror" has virtually no precedent, and certainly none we should be proud of. The Congress stood silently by while these abuses occurred, and they continue to occur even now. The Justice Department now argues at this very moment (with a straight, or perhaps smirking, face) that detainees at Guantanamo Bay who are to be tried before the tribunals established by the execrable (and unconstitutional) Military Commissions Act should not be allowed to talk to their attorneys because the detainees possess "top secret information" that would be disclosed in these conversations; namely, the location of the CIA dungeons where they were secretly kept, and the kind of tortures ("alternative interrogation techniques") practiced upon them. This kind of insanity would be farcical if it were not tragic. It bespeaks an "imperial" (to use your word) disregard for the rule of law.

So much for the Fifth and Sixth Amendments as they apply to detainees. For the abrogation of the rights of Americans to be secure from unreasonable searches and seizures under the Fourth Amendment, we need look no further than President Bush's wholesale violations of the FISA law. Professor Jonathan Turley of George Washington University Law School, and Bruce Fein, formerly counsel in the Reagan Administration, have not hesitated to brand Bush's actions "felonious." He simply rode roughshod over the clear requirements of the FISA law to seek appropriate warrants, after lying to the American people that he had sought such authorization. And Congress did nothing.

As for the Eighth Amendment, and its prohibition against cruel and unusual punishments, and Common Article 3 of the Geneva Conventions, we have Bush's systematic and blatant authorization for the use of torture at every level of his war on terror, on every front, including Iraq, Afghanistan, and Guantanamo Bay. When the Hamdan case made clear that Common Article 3 applied to all detainees simply and only because they were human beings, despite Bush's attempt to create a class of humans upon whom any atrocity could be practiced, Bush was caught up short. He realized that even with the help of a go-along Congress and a mostly go-along Court, he had overstepped his bounds and was now in jeopardy of yet another felony indictment, this one for violation of the Federal Anti-torture Statute, which incorporates the Geneva Conventions as part of its definitional criteria. Since people have died as the result of American torture, the death penalty was potentially applicable. Thus, Bush sought, and Congress of course gave him, a full exoneration (as part of the Military Commissions Act) for any atrocity practiced on enemy combatants at any time since September 11, 2001. This shameful pardon now stands on the books of the United States Code Annotated. The legislation was rushed through in advance of the November elections. Bush knew what was coming, and the putative reason for hurry, the need to get the trials underway immediately, was of course another of Bush's misrepresentations.

I think this episode betrays more than many others Bush's true mindset as he faces the last two years of his Presidency. It accounts for his conciliatory and gracious attitude toward your ascension to the Speakership, and his invitation to lunch. He needed to assess what he was dealing with. You and the Democrats could make life very hard indeed for George W. Bush. So his initial gambit was his usual back-slapping, nickname-calling, utterly false bonhomie. He is as sincere in this attitude of goodwill as he was about firing anyone in his cabinet who was involved in the disclosure of Valerie Plame's CIA identity. It's another lie. It's another corrupt act. His goal is to co-opt the Democratic Congress so as to escape impeachment and indictment.

One could go on and on, of course. Bush's utter indifference to the fate of the Earth's climate, to the sale of the U.S.A. to foreign banks through budget and trade deficits, to war profiteering, to Americans without medical insurance, to the rule of law and respect for civil liberties. The list is so long it boggles the mind while it sickens the stomach.

Bush does not care about his legacy, his place in history or the welfare of the American people at large. A substantial majority of Americans know that, which is why Bush is so universally reviled. But it should be noted that before the election, American approval of Congress was even lower than Bush's job approval rating. I think that's because the American people see Congress as part of the problem. That Congress is in on it. That they have let Bush get away with everything. The Democrats have been given an opportunity to prove otherwise. To demonstrate they can clean house, and restore America's moral standing in the world community. If this opportunity is not seized, the American people will seek other solutions.

Whether the House impeaches Bush or not, I do not see the wisdom in "taking it off the table." This does not seem like good poker. The President is immune to moral suasion, to the appeals of reason, to the elicitation of his better angels. He understands power and the uses of fear. If I were Speaker, I would hold impeachment and the possibility of indictment over his head like a sword of Damocles. I would resist his importuning and play acting. I would use the power the American people had given me to keep him in line.

Sincerely,