Allison Kilkenny: Unreported

America’s Law-Free Zone

Posted in CIA, law, politics by allisonkilkenny on February 17, 2009

Glenn Greenwald

war-crimesDavid Rivkin and Lee Casey are right-wing lawyers and former Reagan DOJ officials who, over the last eight years, have been extremely prolific in jointly defending Bush/Cheney theories of executive power. Today, they have one of their standard Op-Eds, this time in The Washington Post, demanding that there be no investigations or prosecutions of Bush officials.  Most of the arguments they advance are the standard platitudes now composing Beltway conventional wisdom on this matter.  But there is one aspect of their advocacy that is somewhat remarkable and worth noting.

Rifkin and Casey have long been vigorous opponents of the legitimacy of international tribunals to adjudicate crimes committed by American officials.  In February, 2007, they wrote an Op-Ed in the Post bitterly criticizing Italian officials for indicting 25 CIA agents who had literally kidnapped a Muslim cleric from Italy and “rendered” him from Milan to Egypt.  In that Op-Ed, the Bush-defending duo argued that Italy had no right to prosecute these agents (h/t reader tc):

An Italian court announced this month that it is moving forward with the indictment and trial of 25 CIA agents charged with kidnapping a radical Muslim cleric. These proceedings may well violate international law, but the case serves as a wake-up call to the United States . . . .

[T]he United States must still vigorously resist the prosecution of its indicted agents. . . . [I]t is up to American, not Italian, authorities to determine whether any offense was committed in the capture and rendition of Nasr.

Unfortunately, the effort to prosecute these American agents is only one instance of a growing problem. Efforts to use domestic and international legal systems to intimidate U.S. officials are proliferating, especially in Europe.Cases are pending in Germany against other CIA agents and former defense secretary Donald Rumsfeld — all because of controversial aspects of the war on terrorism. These follow Belgium’s misguided effort to pursue “universal jurisdiction” claims for alleged violations of international law, which also resulted in complaints against American officials including Vice President Cheney and former secretary of state Colin Powell. That law was amended, but the overall problem is unlikely to go away.  The initiation of judicial proceedings against individual Americans is too attractive a means of striking at the United States — and one often not subject to control by the relevant foreign government.

Accordingly, Congress should make it a crime to initiate or maintain a prosecution against American officials if the proceeding itself otherwise violates accepted international legal norms.

So it’s up to the U.S. — not any foreign tribunals — to prosecute war crimes and other felonies committed by American officials (for reasons that, at least in part, I find persuasive).  In fact, they argue, international prosecutions are so illegitimate that such proceedings themselves should be declared by the U.S. to be crimes.  Indeed, like most of their political comrades, Rivkin and Casey have consistently argued that U.S. jurisdiction over alleged violations of international law and U.S. treaties by U.S. citizens — including our leaders — is exclusive. 

They made the same argument when opposing U.S. ratification of the enabling statute of the International Criminal Court (.pdf), arguing that “[t]he question is whether [international] law can, or should, be enforced outside national legal systems that have generally functioned well.”  Their answer, of course, is that, when it comes to Americans, international law obligations cannot and shouldn’t be enforced anywhere but America:

There are many problems with the Rome Treaty.  The most immediate one, for Americans, is the danger of its being used as a political instrument against us.  But the most profound flaw is a philosophical one:  The concept of “international” justice underpinning the ICC project is more apparent than real. . . .

The prosecution of political leaders is inherently political, and there are at least two sides to every political conflict. . . . From America’s perspective, the greatest practical danger of joining the ICC regime would be that the court, driven by those who may resent American global preeminence, could seek to restrain the use of U.S. military power through prosecutions of U.S. leaders.

They then went on to call for the Bush administration to vocally and decisively reject the legitimacy of the ICC  so that the whole edifice would collapse.  This is because American leaders should not be subjected to prosecution in foreign countries for their crimes — only in America.

Yet what do these two argue today?  That domestic investigations and prosecutions — by American tribunals and American courts — are alsoinappropriate, illegitimate and destructive.  Though they acknowledge that “the Justice Department is capable of considering whether any criminal charges are appropriate,” they nonetheless insist that this must not be done:

For his part, President Obama has reacted coolly to calls to investigate Bush officials. Obama is right to be skeptical; this is a profoundly bad idea — for policy and, depending on how such a commission were organized and operated, for legal and constitutional reasons. . . .

Attempting to prosecute political opponents at home or facilitating their prosecution abroad, however much one disagrees with their policy choices while in office, is like pouring acid into our democratic machinery. As the history of the late, unlamented independent counsel statute taught, once a Pandora’s box is opened, its contents can wreak havoc equally across the political and party spectrum. . . .

Obama and the Democratic Congress are entitled to revise and reject any or all of the Bush administration’s policies. But no one is entitled to hound political opponents with criminal prosecution, whether directly or through the device of a commission, and those who support such efforts now may someday regret the precedent it sets.

So no international tribunals or foreign countries have any power to investigate or prosecute American officials for war crimes (even when those war crimes are against citizens of those countries and/or committed within their borders).  And, American political officials must also not be prosecuted inside the U.S., by American courts.  “Nobody is entitled” to do that either, because “attempting to prosecute political opponents at home or facilitating their prosecution abroad is like pouring acid into our democratic machinery.”

The implication of their argument — which is now the conventional Beltway view — is too obvious to require much elaboration.  If our political leaders can’t be held accountable for their war crimes and other serious felonies in foreign countries or international tribunals, and must never be held accountable in the U.S. either (because to do so is to “pour acid into our democratic machinery”), then it means that American political officials (in contrast to mostother leaders) are completely and explicitly exempt from, placed above, the rule of law.  That conclusion is compelled from their premises. 

At least to me, it’s just endlessly perplexing how anyone — let alone our political class in unison — could actually endorse such absolute lawlessness for political leaders.  Didn’t our opinion-making elites learn in eight grade that the alternative to a “nation of laws” was a “nation of men” — i.e., the definition of tyranny?  Those are the only two choices.  It’s just so basic.

Apparently, though, this is all fine with our political establishment, since none of this is new.  Here’s what Iran-contra prosecutor (and life-long Republican official) Lawrence Walsh said in 1992 after George H.W. Bush pardoned Casper Weinberger days before his trial was set to begin:

President Bush’s pardon of Caspar Weinberger and other Iran-contra defendants undermines the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office — deliberately abusing the public trust without consequence.

Weinberger, who faced four felony charges, deserved to be tried by a jury of citizens. Although it is the President’s prerogative to grant pardons, it is every American’s right that the criminal justice system be administered fairly, regardless of a person’s rank and connections.

The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger. . . . Weinberger’s early and deliberate decision to conceal and withhold extensive contemporaneous notes of the Iran-contra matter radically altered the official investigations and possibly forestalled timely impeachment proceedings against President Reagan and other officials. Weinberger’s notes contain evidence of a conspiracy among the highest-ranking Reagan Administration officials to lie to Congress and the American public. . . .

In light of President Bush’s own misconduct, we are gravely concerned about his decision to pardon others who lied to Congress and obstructed official investigations.

Does anyone deny that we are exactly the country that Walsh described:  one where “powerful people with powerful allies can commit serious crimes in high office — deliberately abusing the public trust without consequence”?  And what rational person could think that’s a desirable state of affairs that ought not only be preserved — but fortified still further– as we move now to immunize Bush 43 officials for their far more serious and disgraceful crimes?  As the Rifkin/Casey oeuvre demonstrates, we’ve created a zone of lawlessness around our highest political leaders and either refuse to acknowledge that we’ve done that or, worse, have decided that we don’t really mind.

Forgive And Forget?

Posted in Barack Obama, Bush, environment, politics, torture, war crimes by allisonkilkenny on January 16, 2009

Paul Krugman

war-crimes1Last Sunday President-elect Barack Obama was asked whether he would seek an investigation of possible crimes by the Bush administration. “I don’t believe that anybody is above the law,” he responded, but “we need to look forward as opposed to looking backwards.”

I’m sorry, but if we don’t have an inquest into what happened during the Bush years — and nearly everyone has taken Mr. Obama’s remarks to mean that we won’t — this means that those who hold power are indeed above the law because they don’t face any consequences if they abuse their power.

Let’s be clear what we’re talking about here. It’s not just torture and illegal wiretapping, whose perpetrators claim, however implausibly, that they were patriots acting to defend the nation’s security. The fact is that the Bush administration’s abuses extended from environmental policy to voting rights. And most of the abuses involved using the power of government to reward political friends and punish political enemies.

At the Justice Department, for example, political appointees illegally reserved nonpolitical positions for “right-thinking Americans” — their term, not mine — and there’s strong evidence that officials used their positions both to undermine the protection of minority voting rights and to persecute Democratic politicians.

The hiring process at Justice echoed the hiring process during the occupation of Iraq — an occupation whose success was supposedly essential to national security — in which applicants were judged by their politics, their personal loyalty to President Bush and, according to some reports, by their views on Roe v. Wade, rather than by their ability to do the job.

Speaking of Iraq, let’s also not forget that country’s failed reconstruction: the Bush administration handed billions of dollars in no-bid contracts to politically connected companies, companies that then failed to deliver. And why should they have bothered to do their jobs? Any government official who tried to enforce accountability on, say, Halliburton quickly found his or her career derailed.

There’s much, much more. By my count, at least six important government agencies experienced major scandals over the past eight years — in most cases, scandals that were never properly investigated. And then there was the biggest scandal of all: Does anyone seriously doubt that the Bush administration deliberately misled the nation into invading Iraq?

Why, then, shouldn’t we have an official inquiry into abuses during the Bush years?

One answer you hear is that pursuing the truth would be divisive, that it would exacerbate partisanship. But if partisanship is so terrible, shouldn’t there be some penalty for the Bush administration’s politicization of every aspect of government?

Alternatively, we’re told that we don’t have to dwell on past abuses, because we won’t repeat them. But no important figure in the Bush administration, or among that administration’s political allies, has expressed remorse for breaking the law. What makes anyone think that they or their political heirs won’t do it all over again, given the chance?

In fact, we’ve already seen this movie. During the Reagan years, the Iran-contra conspirators violated the Constitution in the name of national security. But the first President Bush pardoned the major malefactors, and when the White House finally changed hands the political and media establishment gave Bill Clinton the same advice it’s giving Mr. Obama: let sleeping scandals lie. Sure enough, the second Bush administration picked up right where the Iran-contra conspirators left off — which isn’t too surprising when you bear in mind that Mr. Bush actually hired some of those conspirators.

Now, it’s true that a serious investigation of Bush-era abuses would make Washington an uncomfortable place, both for those who abused power and those who acted as their enablers or apologists. And these people have a lot of friends. But the price of protecting their comfort would be high: If we whitewash the abuses of the past eight years, we’ll guarantee that they will happen again.

Meanwhile, about Mr. Obama: while it’s probably in his short-term political interests to forgive and forget, next week he’s going to swear to “preserve, protect, and defend the Constitution of the United States.” That’s not a conditional oath to be honored only when it’s convenient.

And to protect and defend the Constitution, a president must do more than obey the Constitution himself; he must hold those who violate the Constitution accountable. So Mr. Obama should reconsider his apparent decision to let the previous administration get away with crime. Consequences aside, that’s not a decision he has the right to make.