[NYTr] Elizabeth Holtzman: Beyond Mukasey's Confirmation

[All the News That Doesn't Fit]

sent by Ed Pearl


Truthout - Nov 13, 2007
http://www.truthout.org/docs_2006/111407R.shtml

Beyond Mukasey's Confirmation, White House Liability Issues Loom Large

By Elizabeth Holtzman

    Though it failed to send his nomination the way of Robert Bork,
attorney general nominee Michael Mukasey's evasiveness on the
definition of torture has done something historic. It has made it
unmistakably clear to mainstream observers that the president may be
criminally liable for violating anti-torture laws. Criminal liability
of this White House will have wider repercussions than Mr. Mukasey's
confirmation. It will reverberate through his tenure as attorney
general and beyond the end of the Bush administration.

    We now know that the reason Mr. Mukasey refused to acknowledge that
waterboarding meets the legal definition of torture, or at the very
least cruel, degrading and inhuman treatment, clearly had nothing to do
with not being briefed about the procedure. If he didn't know at the
time of the Senate committee hearing, he certainly learned afterwards
that the US had considered waterboarding criminal and prosecuted it for
at least a century. The real reason, as mainstream news analysts now
acknowledge, was that publicly admitting waterboarding is torture or
cruel and inhuman would have put the president in jeopardy of criminal
charges.

    The War Crimes Act of 1996 makes cruel, inhuman and degrading
treatment of detainees a violation of the Geneva Conventions and a
federal crime. In addition, a 1994 law, 18 USC Section 2340 (a), makes
it a federal crime to engage in torture outside the US, and it also
applies to those who conspire with (or aid and abet or order) torture
outside the US. Both statutes apply to any US national, including the
president, the vice president and other top officials, as well as
subordinates, such as CIA officers or other US personnel. If the
president ordered, directed or authorized waterboarding or other forms
of torture or mistreatment, he may have violated these laws. They carry
the death penalty in cases where the victim dies. In such cases there
is no statute of limitations, so the president could be subject to
prosecution for the rest of his life.

    Some contend that imposing criminal liability for acts performed in
the heat of combat is wrong and that we can't hold the administration
to 20/20 hindsight. But we know these acts were not spontaneous, but
part of a premeditated pattern of legal manipulation dating back years.
At least since 2002, President Bush, Attorney General Gonzales and
possibly others, including Vice President Cheney, knew that torture and
detainee mistreatment entailed criminal liability, which they sought to
defuse with novel legal theories and retroactive suspensions of
established law.

    In a February 2002 memo, then-White House counsel Alberto Gonzales
warned President Bush about exposure to criminal liability under the War
Crimes Act, mentioning the danger that future independent counsels or
prosecutors might seek to enforce the law (they generally prosecute top
government officials, including presidents). He therefore recommended
opting out of the Geneva Conventions, famously calling them "obsolete."
His theory was that if the Conventions didn't apply, then the War
Crimes Act wouldn't apply, so no prosecutions could be brought. The
president accepted Gonzales's theory and suspended the Conventions'
protections for suspected al-Qaeda detainees.

    But in June 2006 the Supreme Court rejected this theory and held the
Geneva Conventions applicable to the treatment of all detainees,
leaving the president open to liability for violating the War Crimes
Act. So in October 2006 the White House effectively pardoned itself by
slipping a little-noticed provision into the Military Tribunals Act,
conferring effective immunity from the War Crimes Act on high-level
officials by making it retroactively inoperative, from 1996 to 2006.
Public attention was focused on habeas corpus and other controversial
provisions in the bill, so it passed more or less unscrutinized.

    Still, holes remain in the legal barricades the Bush administration
has tried to erect around itself. Even if immunity from prosecution
under the War Crimes Act stands, it only applies through 2006, not for
mistreatment of detainees after that. And the 1994 anti-torture law
applies throughout.

    As attorney general, Mr. Mukasey can try to plug these holes. He may
shield President Bush and others from criminal liability; he may resist
appointing an independent prosecutor to investigate White House
actions. But he cannot, as the 2002 Gonzales memo recognized, tie the
hands of future prosecutors. In lethal cases, our anti-torture laws
have no statute of limitations. Sooner or later, those who violated US
law will be held accountable to them, if not by Mukasey, then by some
future AG.

      Former Congresswoman Elizabeth Holtzman served on the House
Judiciary Committee during the impeachment proceedings against Richard
Nixon. She co-authored the 1973 special prosecutor statute, and
co-wrote (with Cynthia L. Cooper) the 2006 book, "The Impeachment of
George W. Bush."

                            ***

New Impeachment Poll: 70% Say Cheney Abused his Powers

A brand new poll by American Research Group finds 70% of American
voters believe Dick Cheney has abused his powers as Vice President, and
43% definitely want him impeached. 64% say George Bush has abused his
powers as President, and 34% definitely want him impeached.

And that's before a single hearing on impeachment has been held! Rep.
Robert Wexler, a member of the House Judiciary Committee, wants to
start impeachment hearings for Dick Cheney immediately. Support Wexler
by writing Speaker Pelosi and the House Judiciary Committee:
http://www.democrats.com/topelosiandjudiciary