Attempted Statutory Immunity For The Executive's War Crimes.

September 4, 2008

Re: Attempted Statutory Immunity For The Executive’s War Crimes.


By now it seems beyond serious doubt that George Bush and company committed numerous war crimes. There has now been book after book detailing their actions; some of the books are legal in character, even when directed at a much broader audience than lawyers, while others are not legal in nature (e.g., Charlie Savage’s and Jane Mayer’s). The question now, in reality, is not whether crimes have been committed. It is, rather, what if anything to do about them. Suggestions range from doing nothing, to a truth and reconciliation commission, to Congressional hearings (ala the Church committee), to criminal trials before state, federal, foreign or international courts, to civil suits for damages brought by injured persons (e.g., innocent persons -- some of whom are Americans) who were detained for months or years and/or physically abused or tortured.

I shall deal here only with certain matters relevant to criminal trials in American courts and possibly relevant, to some extent, to civil trials for damages in domestic courts.

Based on fairly extensive readings from about 2002-2003 until today, it seems pretty clear that people who were responsible for or committed torture were well aware from the get - go that what they were doing constituted crimes. That realization is why CIA officials, from 2002 to 2006 or 2007 demanded memoranda, from the Office of Legal Counsel of the Department of Justice, falsely claiming that the abuse and torture were not criminal acts. The officials wanted these OLC memos so that they could later avoid or defeat prosecutions by claiming that the decisionmaking office of the DOJ had approved the legality of what they were doing. The officials wanted a “golden shield,” a “get out of jail free card.”

As well, knowledge that the acts and Justice Department memoranda supporting them would be strongly opposed if they came to light were among the crucial reasons the acts and supporting memos were kept secret for years. The opposition, it was well understood, would be based both on American concepts of morality and the fact that the acts were violations of both international criminal law and domestic criminal law. It was understood by perpetrators and legal enablers of torture that many lawyers in the Executive Branch and the military would be among the strong opponents of what was being done -- lawyers such as the generals and admirals who were the military JAGs, certain armed forces General Counsels, State Department lawyers, and DOJ lawyers. Thus these lawyers were kept out of the loop to the maximum extent possible. Information was kept on “a close hold” or “a very close hold,” information was confined to as few people as possible, so that there would be no knowledge, or as little knowledge as possible, on the part of those who would object to the criminal acts. The perpetrators and enablers feared the objectors would say the acts were criminal, would say so internally if not externally and, in some cases (e.g., if opponents were legislators), might publicly denounce and condemn the actions as criminal.

It is, frankly, impossible to overestimate the crucial importance of, and concern for, secrecy to hide the criminal acts. It was well understood that what was being done could not be done if there were widespread knowledge of it. While the Executive likes to claim that secrecy was essential lest terrorists learn what was being done and prepare themselves for it -- the type of claim that in the last few years has been made to cover many Executive misdeeds -- it is at least equally if not more true that secrecy was employed because of knowledge that torture and abuse would have to end - - because they would be seen as both immoral and criminal -- when and if they and their supporting DOJ memos became widely known.

And, after the immoral and criminal actions did become widely known, the Executive Branch, via the vociferous demands of Dick Cheney, and with the cooperation of a complaisant John McCain, obtained what it hoped would be immunity for its criminal conduct. This was done in two statutory sections. The “McCain Amendment” to the Detainee Treatment Act of 2005 provides that in any criminal or civil case arising out of “specific operational practices” involving “detention and interrogation of aliens” whom Bush or his agents “believe[] to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States . . . and that were officially authorized and determined to be lawful at the time that they were conducted,” it will be a defense that the defendant “did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.” In determining whether an ordinary person would know the practices are unlawful, the McCain Amendment tells courts that “an important factor” to consider is “Good faith reliance on advice of counsel.”

The other immunity-creating provision is Section 7(e) of the Military Commissions Act of 2006. Subsection (1) of the Section provides that no court can grant habeas corpus to an “alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Subsection (2) says no court “shall have jurisdiction to hear or consider any other action . . . relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” (Emphasis added.)

The first part of Section 7(e) of the Military Commissions Act of 2006 -- i.e., the “no habeas corpus” provision of 7(e)(1) -- was struck down by the Supreme Court in the Boumediene case in 2008. At least some experts say it is not totally clear whether the second part of the Section was also struck down, i.e, whether Subsection 7(e)(2), barring any action other than habeas corpus, was also struck down by the Boumediene decision. I shall assume for purposes of discussion that the Boumediene case did not itself strike down the second subsection, but instead left its legality to be determined in the future.

When one reads the two immunity provisions closely, it is obvious that there are certain holes in the immunity they might otherwise give. For example, the provisions give immunity only where the victim was an alien, not where he (or she?) was a citizen. But there were large numbers of citizens who got detained, got questioned, and in lots of cases were abused or even tortured. Also, the McCain amendment gives immunity only where the acts of abuse or torture were officially authorized and determined to be lawful at the time they were done. But there were lots of acts, apparently, that, when done, either had not yet been officially authorized, or had not been determined lawful, or both.

As well, the second subsection of the Military Commissions Act gives immunity only if the alien has been “determined . . . to have been properly detained as an enemy combatant or is awaiting such determination.” But numerous people who were abused or tortured have now been released without any determination that they were enemy combatants. (Indeed, a court could find that there is no such legal category as “enemy combatant” -- in reality there isn’t; it was something that was simply made up by the Executive -- so that the provision is in effect a nullity because it gives immunity only for a category that does not lawfully exist.)

There is also a so-called “preemption” issue. The wording of the two statutes does not distinguish between federal courts and state courts, but instead seem to confer immunity in any court. But can this be done? Can the federal government preemptively immunize Bush and company from liability for murder under state law -- the crime for which Vincent Bugliosi says Bush and his henchman could and should be prosecuted in state courts?

But aside from the obvious holes in the statute, there is also a broader point, one that, at least morally speaking, and perhaps legally speaking too, is far more important. It goes something like this: Can a person, knowing that acts are unlawful, engage in those acts and then obtain immunity by exercising power over the legislative process and by finding lawyers who are willing to write the most incompetent and atrocious legal opinions designed to give the guilty a get out of jail free card?

It is evident that if these things can be done, then there is an end of law where the truly wealthy and powerful are concerned. Whether it is Al Capone or Dick Cheney, the filthy rich or obscenely powerful will have it in their power to do the most awful things yet escape the law by using contributions or power to obtain immunity from preexisting law and to buy the opinions of immoral lawyers. That is the moral and philosophical basis why these things can’t be permitted. What the precise legal rationale would be is something I’m not sure of, is something on which research must be done. Perhaps there is some constitutional argument about perverting the legislative process -- which, however, is often perverted -- or some so-called “equitable” doctrine, or some (long forgotten?) doctrine of criminal law, which bars this kind of societal distortion. Or perhaps there is some theory which sets aside immunity if the provision granting it is the product of what in effect is a criminal enterprise. I myself am not sure of what the legal grounds would be, but I do feel that the immunity here is impermissible, and that a legal methodology must be found to render it impermissible, if we are to have a country of laws.

The issue of acting on advice of counsel raises additional questions. It is widely thought that there are perhaps six to ten lawyers who are guilty of crimes because they facilitated, they enabled, the criminal conduct perpetrated by torturers. The names Yoo, Addington, Haynes, Gonzalez, Flanigan, Bradbury, Bybee are among those that leap to mind. These people cannot claim advice of counsel; they were the counsel who were doing the advising and were drafting get out of jail free cards for others. They also knew that what they were advising was illegal, which was one of the main reasons they kept everything a close hold and insured secrecy so that Executive lawyers and officials who would object to their advice as immoral and unlawful would not learn what they were doing.

Guys like Cheney and Bush shouldn’t be able to plead good faith reliance on the advice of counsel either, because they told the counsel what advice to give. Could Al Capone or Lucky Luciano receive immunity for acting in accordance with the advice of counsel when they told counsel what to advise? Not to mention that, rather than acting in good faith reliance on the advice of counsel, Cheney and Bush knew that they were ordering violations of law. The fact that they were doing so, and were well aware they were doing so, was one of the reasons why they, like a significant number of CIA officials who knew the same, demanded that lawyers produce legal cover for them in the form of OLC memos authored by the likes of Yoo and Bradbury.

Then there is the situation of the lower level CIA and military people -- persons in the chain of command and/or who committed the torture and the renditions for torture. These people did not read the Yooian type memos -- actually a lot of involved higher level people didn’t either -- so they cannot claim direct reliance on advice of counsel. But, high level or low, no doubt they were told that torture was approved by lawyers. Nonetheless, these people too cannot claim good faith reliance on the advice of counsel. For they had to know that torture was forbidden no matter what some lawyers said. You could not grow up in America and not know this. (Would someone be allowed to successfully claim to have thought murder was lawful because some lawyer told him so?) People who grew up in America cannot realistically claim that they thought it was lawful to beat people mercilessly, to smash their heads against walls, to kill about one hundred of them apparently, to hang them from ceiling hooks, to make them freeze, to deny them sleep for weeks on end, and so forth. I don’t care what they were told lawyers supposedly had said. They knew what they were doing was wrong. FBI and NCIS guys on the scene knew it regardless of what lawyers like Yoo said, and it was knowledge that what they were doing was wrong that caused some lower level CIA guys too to want a get out of jail free card.

Beyond all this, the claim of good faith reliance on counsel, like the cognate claim of being tasked or ordered to torture, kidnap or rend, and like the immunity provisions themselves, simply are an effort to escape the Nuremberg principles by saying that others said what the culprits were doing was okay. Nuremberg established the principle that there are things that simply can’t be done, a principle later furthered in other treaties, conventions and cases. Nuremberg also established that one cannot rely on the defense that one is merely doing what others said to do. But claiming that their actions were immune because others okayed them is precisely what Cheney, Bush, their whole crowd, and even McCain have been attempting to do. They have been and are seeking to do forbidden acts and then to escape punishment by retroactive immunity, including immunity based on the so-called advice of counsel. They knew what they were doing was illegal, as evidenced by the extreme secrecy they practiced lest it be learned they were practicing, and lest they be accused of practicing, the crimes they were in fact practicing. Morality, decency, and Nuremberg alike forbid this.

* * * * *

There is another question, one analogous to immunity, which has also arisen. What if Bush, it is asked, before leaving office, were to pardon himself and all others involved in the crimes at issue? The theory widely accepted is that the pardon power is absolute, so the President can pardon himself and anyone else for all crimes. Some people feel the President cannot grant himself a pardon, precisely because he grants pardons - - the theory here being, I presume (but don’t actually know), that you can only grant something to someone else, not yourself. (This is purely semantic and not very persuasive, I would think.)

The idea that a President has an absolute, unfettered ability to grant pardons does not strike me as persuasive. Could a President order the mass murder of 5000 people and then allow the perpetrators and he himself to escape all punishment by pardoning them and himself? The idea is preposterous and would mark the end of a government of laws. Were such a pardon permissible, the law is at an end and we might as well all move to Canada -- or, as I believe Lincoln said, to Russia, where they take their tyranny straight, without the base alloy of hypocrisy.

So there must be some limits to the pardoning power. No doubt they are inherent in the history of the original creation of the power (perhaps in England?), a history I know nothing of and have never seen reference to. We need research on the subject. Perhaps the research will show that there cannot be a pardon for the President’s own criminal acts or for other persons who helped him carry out his criminal acts. Perhaps it will show other limits. But it is not really possible that the pardoning power lets a President commit whatever crimes he chooses, no matter how heinous and obviously unlawful, and then pardon himself as well as all others who helped him carry out atrocious illegal acts like killing hundreds or thousands of people. A claim of such unfettered power defies common sense*


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