Nixon, at least, had Gerald Ford issue his pardon. While the world wondered if Bush would pre-emptively pardon his torture gang on the last day, most forgot… he already did. Well, at least he tried to make sure he would not have to rely on another President’s largesse.
This could also explain why Barack Obama and Eric Holder are so reluctant to wade in and mount a war crimes prosecution. To do so, they would likely first need a Supreme Court ruling specifically striking down language in Section 6 of the 2006 Military Commissions Act specifically exempting the President and his team.
It would mean revisiting an already partially struck down law from a Supreme Court decision in June. Boumediene v. Bush was a case where the court sided against the Administration on a fairly narrow point of law. That’s how the court operates. It likes neither blanket rebukes or repeals nor going back in to fix another part of something they already ruled on, especially if it makes them look as if they did not do THEIR job the first time around.
When Justice Department lawyers under then Attorney General Alberto Gonzalez contributed to the drafting of the Military Commissions Act of 2006, it was in response to an earlier defeat they sustained from the Supreme Court on Habeus Corpus rights for so-called "enemy combatant" detainees at the US detention facility in Guantanamo Bay, Cuba (Gitmo). There was a surprise placed in the hastily drafted bill, in response to the Court.
Deep within the Act is a provision that seems to retroactively pardon the President, Vice President, and all subordinates for violations of the War Crimes Act committed since September 11th. Specifically, Section 6 of the Military Commissions Act amended the War Crimes Act so only actions defined as “grave breaches” could be the basis for a prosecution, and it made that definition retroactive to November 26, 1997. The specific actions defined in Section 6 were: torture, cruel or inhumane treatment, murder, mutilation or maiming, intentionally causing serious bodily harm, rape, sexual assault or abuse, and the taking of hostages.
Is waterboarding a “grave (enough) breach”? Eric Holder is on record as saying it is indeed torture. What about renditions to private prisons for torture? Is that a “grave breach?” This is the gray area the Obama Administration frets over. According to the group Human Rights Watch, the net effect of this law’s intention is that “perpetrators of several categories of what were war crimes at the time they were committed, can no longer be punished under U.S. law.”
CNN’s Jack Cafferty explained disgustedly in this video from that time period:
The Center for Constitutional Rights said: “The MCA’s restricted definitions arguably would exempt certain U.S. officials who have implemented or had command responsibility for coercive interrogation techniques from war crimes prosecutions.” The amendment is designed to protect U.S. government perpetrators of abuses during the “war on terror” from prosecution.
President Bush signed the bill into law on October 17, 2006. The US Supreme Court, in a second rebuke of the handling of Gitmo prisoners, struck down Section 7 of the Act in Boumediene v. Bush, but left intact the Detainee Treatment Act. That Act, although it looked good on paper and seemed to protects the rights of detainees, was the subject of one of Mr. Bush’s many signing statements which watered it down and rendered the Act moot.
Said Mr. Bush’s statement: “The executive branch shall construe the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.”
Said an anonymous senior administration official at the time, “Of course the president has the obligation to follow this law, (but) he also has the obligation to defend and protect the country as the Commander-in-Chief, and he will have to square those two responsibilities in each case. We are not expecting that those two responsibilities will come into conflict, but it’s possible that they will.”
In other words, “As Commander–in-Chief I’m the decider and you (the Supreme Court) are not.”
Let that last statement wash over your outrage.
Then note that other signatories to the Geneva Convention will have no problem enforcing and investigating War Crimes. So Citizen Bush, Cheney and crew, don’t plan on using those lifetime diplomatic passports any time soon. Just ask General Pinochet how far the long arm of the law will reach when one travels abroad.
Welcome to US house arrest boys.
Denis Campbell is a US journalist based in the United Kingdom. He contributes to newspapers and magazines, is a BBC Radio election commentator and publishes the daily e-magazine The Vadimus Post from the Latin Quo Vadimus – where are we headed and do we know why?