Posted: Salon.com - Monday, Feb. 16, 2009 07:45 EST
(updated below - Update II - Update III)
On Friday in Salon, Joe Conason argued that there should be no criminal investigations of any kind for Bush officials "who authorized torture or other outrages in the 'war on terror'." Instead, Conason suggests that there be a presidential commission created that is "purely investigative," and Obama should "promis[e] a complete pardon to anyone who testifies fully, honestly and publicly." So, under this proposal, not only would we adopt an absolute bar against prosecuting war criminals and other Bush administration felons, we would go in the other direction and pardon them from any criminal liability of any kind.
I've already written volumes about why immunizing political officials from the consequences for their lawbreaking is both destructive and unjust -- principally: the obvious incentives which such immunity creates (and, for decades, has been creating) for high-level executive branch officials to break the law and, even worse, the grotesque two-tiered system of justice we've implemented in this country (i.e., the creation of an incomparably harsh prison state for ordinary Americans who commit even low-level offenses as contrasted with what Conason calls, approvingly, "the institutional reluctance in Washington to punish political offenders"). Rather than repeat those arguments, I want to focus on an issue that pro-immunity advocates such as Conason simply never address.
The U.S. really has bound itself to a treaty called the Convention Against Torture, signed by Ronald Reagan in 1988 and ratified by the U.S. Senate in 1994. When there are credible allegations that government officials have participated or been complicit in torture, that Convention really does compel all signatories -- in language as clear as can be devised -- to "submit the case to its competent authorities for the purpose of prosecution" (Art. 7(1)). And the treaty explicitly bars the standard excuses that America's political class is currently offering for refusing to investigate and prosecute: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture" and "an order from a superior officer or a public authority may not be invoked as a justification of torture" (Art. 2 (2-3)). By definition, then, the far less compelling excuses cited by Conason (a criminal probe would undermine bipartisanship and distract us from more important matters) are plainly barred as grounds for evading the Convention's obligations.
There is reasonable dispute about the scope of prosecutorial discretion permitted by the Convention, and there is also some lack of clarity about how many of these provisions were incorporated into domestic law when the Senate ratified the Convention with reservations. But what is absolutely clear beyond any doubt is that -- just as is true for any advance promises by the Obama DOJ not to investigate or prosecute -- issuing preemptive pardons to government torturers would be an unambiguous and blatant violation of our obligations under the Convention. There can't be any doubt about that. It just goes without saying that if the U.S. issued pardons or other forms of immunity to accused torturers (as the Military Commissions Act purported to do), that would be a clear violation of our obligation to "submit the [torture] case to [our] competent authorities for the purpose of prosecution." Those two acts -- the granting of immunity and submission for prosecution -- are opposites.
And yet those who advocate that we refrain from criminal investigations rarely even mention our obligations under the Convention. There isn't even a pretense of an effort to reconcile what they're advocating with the treaty obligations to which Ronald Reagan bound the U.S. in 1988. Do we now just explicitly consider ourselves immune from the treaties we signed? Does our political class now officially (rather than through its actions) consider treaties to be mere suggestions that we can violate at will without even pretending to have any justifications for doing so? Most of the time, our binding treaty obligations under the Convention -- as valid and binding as every other treaty -- don't even make it into the discussion about criminal investigations of Bush officials, let alone impose any limits on what we believe we can do.
What was all the sturm und drang about in 2003 over Bush's invasion of Iraq without U.N. approval, in violation of the U.N. charter? Wasn't it supposed to be a bad thing for the U.S. to violate its own treaties? What happened to that? Conason himself was actually one of the clearest and most emphatic voices presciently highlighting the deceit on which the pro-war case was based, stridently warning of "ruined alliances and damaged institutions." Why, then, is it acceptable now to ignore and violate our treaty obligations with regard to torture and other war crimes committed by high-level Bush officials? What's the argument for simply pretending that these obligations under the Convention don't exist?
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On a related note, Conason, in the very first paragraph of Friday's article, plainly misstated the results of a new Gallup poll on the question of whether Bush officials should be prosecuted and/or investigated. I have no doubt it was unintentional, but his error highlights a very important point about how this debate has proceeded. Here's what Conason wrote in his first paragraph (emphasis added):
More than 60 percent of Americans believe that alleged abuses and atrocities ordered by the Bush administration should be investigated either by an independent commission or by federal prosecutors, according to a poll released yesterday by the Gallup Organization. A significant minority favors criminal sanctions against officials who authorized torture or other outrages in the "war on terror" -- yet a considerably larger minority of nearly 40 percent prefers that the Obama administration leave its wayward predecessors be.
That last assertion (the one I bolded) is simply untrue. As Jim White notes here, the Gallup poll asked about three different acts of Bush lawbreaking: (1) politicization of DOJ prosecutions, (2) warrantless eavesdropping on Americans, and (3) torture. For each crime, it asked which of three options respondents favored: (1) a criminal investigation by the DOJ; (2) a non-criminal, fact-finding investigation by an independent panel; or (3) neither. The full results are here.
For all three separate acts of alleged crimes, the option that receives the most support from Americans is criminal investigations (i.e., the exact opposite of what Conason wrote). And the percentage that favor that nothing be done is in every case less than the percentage that want criminal investigations, and the "do-nothing" percentage never reaches 40% or close to it (the highest it gets is 34% -- roughly the same minority of pro-Bush dead-enders that continue to support most of what was done).
As White notes, the breakdowns are even more revealing. For all three areas of lawbreaking, majorities of Democrats (which, by the way, is now the majority party) favor criminal investigations. For each of the three areas, more independents favor criminal prosecutions than favor doing nothing, and large majorities of independents -- ranging from 59% to 71% -- want either a criminal investigation or an independent fact-finding investigation. A Washington Post poll from a couple weeks ago found very similar results: majorities of Americans (and large majorities of Democrats) favor investigations into whether Bush officials broke the law and, by a wide margin, oppose the issuance of pardons to Bush officials.
Imagine what those numbers would be in a world where virtually every establishment political pundit -- literally: whether Democratic or Republican, liberal or conservative -- weren't uniting together to oppose prosecutions for torture and war crimes. Even with that unified anti-prosecution stance from a trans-partisan rainbow of Beltway opinion-makers, criminal investigations remain the leading position among Americans generally and among majorities of Democrats specifically. Those are just facts.
As is always the case, the mere fact that majorities of Americans believe X does not mean that X is right or true. But pundits, journalists and politicians should stop claiming that they're speaking for most Americans when they argue that we should just "move on" -- or that the belief in investigations is the province of the leftist fringe -- because that claim is demonstrably false.
Recall when opposition to the Iraq War and a demand for a withdrawal timetable was routinely depicted by the Beltway class as a "liberal" or even Far Left position -- even though large majorities of Americans held exactly those views. Apparently, the Far Left encompassed more than 60% of the country. Or recall when Time's Managing Editor, Rick Stengel, went on national TV and claimed that Americans don't want Bush officials and Karl Rove investigated for the U.S. Attorney scandal even when polls showed that large majorities of Americans favored exactly those investigations (a false claim which, to this day, Stengel refuses to retract).
That is the same flagrant distortion of public opinion that one finds here in the debate over investigations. The Washington Post's David Ignatius claims that a desire for investigations of Bush crimes is confined to "liberal score-settlers." Lindsey Graham asserts that only the "hard Left" wants criminal investigations. Newsweek's Jon Barry is certain that the desire for investigations is only about "vengeance, pure and simple."
Apparently, huge numbers of Americans -- majorities, actually -- are now liberal, vengeance-seeking, score-settlers from the Hard Left. What we actually have is what one finds again and again: establishment journalists who will resort to outright distortions about American public opinion in order to render it irrelevant, by claiming that "most Americans" believe as they believe even where, as here, that claim is categorically false. It's hardly surprising (except to an insular Beltway maven) that Americans, who know that they will be subjected to one of the world's harshest and most merciless criminal justice systems if they break the law, don't want political elites exempted from the rule of law. Imagine that.
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Finally, Newsweek's Michael Isikoff -- echoing a report from John Yoo's Berkeley colleague, Brad DeLong -- reports that an internal DOJ probe (initiated during the Bush administration) has preliminarily concluded that Bush DOJ lawyers who authorized torture (John Yoo, Jay Bybee, Stephen Bradbury) violated their professional duties as lawyers by issuing legal conclusions that had no good faith basis, and that this behavior will be referred to their state bar associations for possible disciplinary action. Those conclusions so infuriated the allegedly honorable Michael Mukasey that he refused to accept the report until changes were made. Now it is up to Eric Holder to accept and then release that report.
The implications of this event can't be overstated. One of the primary excuses offered by Bush apologists and those who oppose investigations is that Bush DOJ lawyers authorized the torture and opined that it was legal. But a finding that those lawyers breached their ethical obligations would mean, by definition, that the opinions they issued were not legitimate legal opinions -- i.e., that they were not merely wrong in their conclusions, but so blatantly and self-evidently wrong that they were issued in bad faith (with the intent to justify what they knew the President wanted to do, rather than to offer their good faith views of what the law permitted).
The Convention Against Torture explicitly prohibits the domestic legalization of torture, and specifically states that it shall not be a defense that government officials authorized it. So whether or not these legal opinions were issued in good faith is irrelevant to our obligations under that treaty to investigate and prosecute. But a finding that these legal opinions were issued in bad faith -- with the deliberate intent to knowingly legalize what was plainly criminal behavior -- will gut the primary political excuse for treating Bush officials differently than common criminals.
UPDATE: Citing numerous leading international law authorities, Valtin has an excellent discussion of the obligations the U.S. has to criminally investigate Bush crimes, not only under the Convention Against Torture but also under the Geneva Conventions. If we don't consider ourselves bound by the treaties we sign, we should just say so and abrogate them. Those demanding criminal immunity for Bush officials are advocating that we can and should violate our treaty obligations; they really ought to be honest about it.
UPDATE II: On June 28, 2004, George Bush commemorated the U.N. Day to Support Torture Victims and vowed that the U.S. "will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction." In doing so, he specifically cited the U.S.'s binding obligation under the Convention to do so (h/t leftydem):
To help fulfill this commitment, the United States has joined 135 other nations in ratifying the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction. American personnel are required to comply with all U.S. laws, including the United States Constitution, Federal statutes, including statutes prohibiting torture, and our treaty obligations with respect to the treatment of all detainees. . . .
The United States also remains steadfastly committed to upholding the Geneva Conventions, which have been the bedrock of protection in armed conflict for more than 50 years. . . . [W]e will not compromise the rule of law or the values and principles that make us strong. Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere.
If George Bush, citing our obligations under the Convention Against Torture and the Geneva Conventions, can publicly vow that "we will investigate and prosecute all acts of torture," why can't Democratic politicians and liberal pundits simply cite the same treaty obligations and make the same commitment?
UPDATE III: The first paragraph of the Conason article has now been re-written to reflect the accurate polling results.
ABOUT GLEN: Glenn Greenwald's Unclaimed Territory
Previously a constitutional law and civil rights litigator in New York. Glen's authored two New York Times Bestselling books: "How Would a Patriot Act?" (May, 2006), a critique of the Bush administration's use of executive power, and "A Tragic Legacy" (June, 2007), an examination of the Bush legacy. His most recent book, "Great American Hypocrites", examines the manipulative electoral tactics used by the GOP and propagated by the establishment press - released in April, 2008, by Random House/Crown.
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