War Crimes! An Elaboration

Thanks to Memeorandum, this short post on an ABC News story has received much attention and much more misinterpretation.

It is a fact that many liberal Democrats believe President Bush and other senior administration officials to be guilty of war crimes.

It is my educated conjecture that, in a Democratic administration, there will be some DoJ political appointees and/or administration advisers who share that belief.

Indeed, the director of the CIA, Michael Hayden, shares my conjecture. He recently agreed to purchase, at $300 a pop, legal liability insurance for about two thirds of his agency's workforce, including virtually all of the National Clandestine Service, precisely to protect against any future administration's attempt to hold officers legally accountable for their actions.

Another source of potential prosecutions comes, of course, from the Hague, although the failure of the US to participate in the ICC kind of puts the kibosh on that possibility.

It is within the realm of possibility that reports like ABC News's are used by the government, by private citizens, or by international actors, to substantiate charges against the Bush administration, against CIA officers or against the Department of Defense.

I'm not endorsing the idea of prosecuting anyone; I'm not calling President Bush or anyone else a war criminal; I'm not even saying that prosecutions will go forward; I'm just describing a scenario that may intrude upon our politics in 2009 and beyond.

Comments

I guess Bush, Cheney, Rummy, Perle, Addington, et al should put any plans for future international travel on permanent hold.

As I told JB on the last thread about this, the fact that Bush's "enhanced interrogation techniques" are torture is not up for debate. The Germans using them were prosecuted for war crimes. The Military Code of Conduct, the Geneva Convention, and the U.N. all define them as torture.

Anybody defending Bush's acts as not being torture needs to read Sullivan's detailed and factual history of Verschärfte Vernehmung, the "enhanced interrogation" techniques used by the Germans in WWII, the fact that they were prosecuted as war crimes, and the fact that the Bush administration has presented the same defense. Also review the 100+ prisoner deaths that occurred while in our custody, and the fact that the U.S. military itself ruled dozens of them as homicides.

And don't try to paint this as a knee-jerk Nazi comparison. We're talking details and facts, something the right-wingnuts have a real hard time dealing with.

Posted by LFC | April 10, 2008 11:11 AM

For this very reason, it seems very likely that Bush will pardon most senior members of his administration and the intelligence services.

Posted by Ethan | April 10, 2008 11:16 AM

The US's refusal to participate in the ICC does not rule out the possibility of international prosecution. If a war crime or a crime against humanity is committed, then states or international tribunals can assert "universal jurisdiction" for those crimes that harm all people / the human race as a whole.

On this point, one of the key factors an international or foreign tribunal might look at in deciding its jurisdiction is the possibility for an effective domestic remedy. In this regard, one can see the retroactive immunity the administration granted its officials in the Military Commissions Act as a key legal mistake, as it gives a foreign tribunal grounds for deciding that a domestic remedy is unavailable. Thus, like Pinochet, various Bush advisors could find themselves subject to a 'tap on the shoulder' if they choose to travel abroad in the next several years.

This changes, of course, if the Obama administration repeals that law / launches its own investigations. Likewise, such a prosecution would clearly be a political as well as a legal judgment, so to say that it is legally permissible does not mean it is either likely or advisable.

Posted by Vermando | April 10, 2008 11:24 AM

"legal liability insurance for about two thirds of his agency's workforce, including virtually all of the National Clandestine Service"

That can only cover claims from civil suits.

Criminal liability from prosecutions both in the USA and abroad are another matter.

Posted by D | April 10, 2008 11:26 AM

"War criminal" is not a pejorative term. If the report is accurate, the named principals are in fact war criminals, subject to prosecution under U.S. and international law.

Posted by Galatia | April 10, 2008 11:29 AM

Ambinder - I'm just describing a scenario that may intrude upon our politics in 2009 and beyond.

No, you are describing a scenario that would completely paralyze the US government and derail whatever agenda the party in power had until the "show trials" were finished. You might also see the 1st serious wave of nationwide domestic political violence since the black riots of the 60s. Where people would be killed based on political belief, and liberal, then conservative centers, then courtrooms - burned.

Posted by chris ford | April 10, 2008 11:36 AM

Marc, Marc what's with the defensive posture? By any objective measure the Bush administration is complicit in war crimes. That's not a partisan reading it's just a fact, albeit not one apparently permissable in polite society. To try and dress this up as only something advocated by crazed liberals reminds me of the sort of discourse before the Iraq war began when scenarios of the catastrophe to follow were painted as leftist lunacy when in fact they were sober prophecy.

Posted by Cioran Sellars | April 10, 2008 11:43 AM

Ethan: For this very reason, it seems very likely that Bush will pardon most senior members of his administration and the intelligence services."

I've wondered about that as well. Can the president pardon people for crimes that they haven't even been charged with yet? If so, what was to stop every president in the history of the United States from simply saying as they were walking out the door, "You're all pardoned for everything"?

Posted by IanY77 | April 10, 2008 11:44 AM

>

What is the likelihood that these reports are false?

Go and check if whats reported to have been done is a war crime, then apply your impartial journalistic sheen to it, and tell us what you consider their 'war criminal' status to be. Is that asking too much?

This is the same spinelessness demonstrated by the media, that marched this country into the Iraq war.

Posted by TDE | April 10, 2008 11:58 AM

I've wondered about that as well. Can the president pardon people for crimes that they haven't even been charged with yet? If so, what was to stop every president in the history of the United States from simply saying as they were walking out the door, "You're all pardoned for everything"?

As far as I know, the other branches have never tried to set any limits on the pardon power. That's not to say that we wouldn't see a legal or legislative challenge to egregious prospective pardons from the Bush administration, but I doubt there's any settled law on the subject. (The primary check on the pardon power, as we saw with the Marc Rich kerfuffle or the Nixon pardon, has been political. It tends to sour the public on the president's entire party.)

Posted by southpaw | April 10, 2008 12:02 PM

Not only do I believe that Bush, Cheney, Rove, Gonzoles, Rice, Addington and all the rest of that filth are war criminals, but I also consider them to be traitors to their country. Additionally, despite being generally opposed to the death penalty, I make an exception for treason and would fully support these bastards, after a fair trial, being taken out and shot.

Your mileage may vary, you know, depending on how okay you are with torture, illegal spying and starting an illegal war for the sole purpose of rewarding Republican campaign contributers.

Posted by Alan | April 10, 2008 12:19 PM

The insurance is just the latest move. CIA and other agencies years ago forced the White House to write memos, to have these kinds of meetings precisely because they knew where this was likely to end, regardless of who was President next.

It's not that suddenly people are realizing there will be a change in regime and political payback might happen.

People knew from the beginning that they were crossing the line, and the smart ones demanded all kinds of CYA stuff--memos, insurance policies, official rules, etc. The line staff of the CIA was much more savvy than the privates at Abu Ghraib--they knew this was a hanging crime and didn't want their necks to be the ones ending up in the noose if our nation had an "ohmigod, what were we thinking?" moment.

Ashcroft got it when the others didn't: "Why are we talking about this in the White House? History will not judge this kindly."

Posted by anonymiss | April 10, 2008 12:31 PM

Well, if you aren't advocating anything, why the hell bring it up, you turd!

Pathetic!

Posted by Boss Man | April 10, 2008 12:33 PM

Well, if you aren't advocating anything, why the hell bring it up, you turd!

Pathetic!

Posted by Boss Man | April 10, 2008 12:34 PM

Well, if you aren't advocating anything, why the hell bring it up, you turd!

Pathetic!

Posted by Boss Man | April 10, 2008 12:34 PM

Well, if you aren't advocating anything, why the hell bring it up, you turd!

Pathetic!

Posted by Boss Man | April 10, 2008 12:34 PM

Well, if you aren't advocating anything, why the hell bring it up, you turd!

Pathetic!

Posted by Boss Man | April 10, 2008 12:34 PM

Well, if you aren't advocating anything, why the hell bring it up, you turd!

Pathetic!

Posted by Boss Man | April 10, 2008 12:34 PM

Well, if you aren't advocating anything, why the hell bring it up, you turd!

Pathetic!

Posted by Boss Man | April 10, 2008 12:34 PM

Well, if you aren't advocating anything, why the hell bring it up, you turd!

Pathetic!

Posted by Boss Man | April 10, 2008 12:34 PM

Yes, it is a fact that there are a lot of liberal Democrats who think that Bush and other senior administration officials are guilty of war crimes. But just FYI, there are also some of us who are a) conservatives and b) Republicans, who think so, too. Certainly there looks to be enough evidence to warrant bringing them to trial.

Posted by wj | April 10, 2008 12:54 PM

It should at the very least be looked into. I agree there may be some deletrious effects in the short term on the political process, but it is necessary. We would be saying that you can subvert the constituion, and the law of the land, as long as you are in the White House. Even if they were to get the Scooter Libby treatment, I think it would be worth it, that there are some repurcussions.

Posted by Jay | April 10, 2008 1:17 PM

"No, you are describing a scenario that would completely paralyze the US government and derail whatever agenda the party in power had until the "show trials" were finished. You might also see the 1st serious wave of nationwide domestic political violence since the black riots of the 60s. Where people would be killed based on political belief, and liberal, then conservative centers, then courtrooms - burned."

What is it about fundamentalist republicans that always leads to eschatology? "If you don't listen to me, there will be a terrible disaster and you will have millions of deaths and disease and America will be destroyed!!!1!"

It's the reason we're still in Iraq, it's the reason we bailed out Bear Stearns, it's the reason we supposedly can't prosecute the single greatest war criminal in American history for his crimes and it's the reason Barack Obama is either a secret terrorist bent on destroying America, a secret angry black man bent on destroying America, or a secret über-liberal bent on destroying America.

Get over yourself and your fears, Chris. You've been smoking too much pot, it's making you paranoid.

Posted by Jordan Weber-Flink | April 10, 2008 1:22 PM

If you ask me, they should set up a South African-style Truth and Reconciliation Commission to deal with these issues and HRC and BHO should commit to this asap. All this talk of going after the Bush administration is destabilising and incentivising a war in the coming months.

The spineless Democrats missed their opportunity. they knew this stuff was going and and chose to play along and sign the cheques. To set up some show trials once they get into power would not make the whole situation worse.

I actually think it is unlikely that either Democratic candidate would do this for varying reasons. The hawks will hope to keep these tools; the hawks and doves will appreciate how dangerous and destabilising such moves would be. The danger of this is that the culture that has gotten established won't get addressed. That is why a great leader would opt for the TRC approach.

Posted by Chris Dornan | April 10, 2008 1:25 PM

The difference, Chris, is that in South Africa those offended against were part of the new establishment in power. In the case of these apparent war crimes, those offended against (as opposed to those offended) are not, and will not be, part of the party in power. Which means that they won't be in a postiion to make the offer of reconcilliation in exchange for truth.

Posted by wj | April 10, 2008 1:47 PM

Translation: "I'm not saying it is bad for our government officials to break the law, I'm not saying we should care about whether our government officials have broken the law, I'm not even predicting that anyone else will even try to hold our government officials accountable for breaking the law--basically, I am doing everything possible to avoid the appearance that I might have a spine."

Anyway, I believe the little caselaw available on presidential pardons suggests the President can in fact grant them prior to the initiation of a prosecution. What he can't do is grant them prior to the criminal act itself, but that is not relevant here.

Posted by DTM | April 10, 2008 2:59 PM

Thankfully Congress had the foresight to pass the American Service-Members' Protection Act (as an amendment to the 2002 Defense Authorization) which authorizes the President to use “all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court..." (pulled that from wikipedia) So hopefully there is no chance that we'll allow ourselves to be subject to a treaty we didn't sign. Besides which, on principle a judge in Brussels should not be granted the authority to overturn a US Supreme Court decision. Would seemingly be undemocratic as our elected Representatives would have no oversight or appointment power and at odds with the Constitution's clear statement that, "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."(Article 3, Section 1)

Posted by Adam J. Schmidt | April 10, 2008 4:54 PM

Backbone, Ambinder. Backbone.

Posted by AgentZero | April 10, 2008 7:41 PM

It would be difficult for a new adminstration to try a bring war crimes charges against Bush/Cheney. Wouldn't you also have to bring charges against the current Congress for going along with the 'war crimes' when they could filed impeachment charges against the President/VP? Therefore, Obama and Hillary would have to bring conspiracy charges against themselves. I think a good lawyer would be able get by this one. It amounts to a person standing by and doing nothing when another person kills someone and could have been stopped.

Posted by john schmidt | April 10, 2008 10:14 PM

Go right ahead and push this. The status of the Democratic party as a joke on national security will be out there for all to see. I can hardly wait for a reporter to ask Obama or Clinton. "Senator, some of your supporters are urging war crimes trials for Bush administration officials. Will you state publicly whether your administration will pursue these charges?" Unless the candidate repudiated the whole idea, you'd be lucky to get 45% of the vote.

The big problem for Democrats is that they consider Bush more dangerous than bin Laden. Very few outside the echo chamber share that view.

Posted by Ken Hahn | April 11, 2008 12:41 AM

Informed people around the globe know that the Bush administration has committed many war crimes in Iraq. The illegal invasion of Iraq, a war of aggression, is the "supreme international crime" according to Nuremberg Trials Judge Robert H. Jackson. Targeting of civilian areas (over one million Iraqis have been killed in Bush's war), torture, use of weapons such as depleted uranium, extraordinary rendition to countries known to torture, and unending detention without trial are all violations of international law and war crimes or crimes against humanity. Read Lawless World by British International Law Scholar/Lawyer Phillippe Sands. Only the U.S. corporate media, including the Times, is too cowardly or greedy (or both) to tell the brutal truth: the Bush administration has committed war crimes and is headed by war criminals who deserve prosecution, conviction, and life imprisonment. Democrats may be too complicit or cowardly to pursue this, but it must be pursued.

Posted by Ed Ciaccio | April 11, 2008 1:53 AM

The supposed Law and Order party does not believe in the law when it is applied to them. Hypocrisy is a violation of integrity and good faith like no other in society. Not only are the party leaders guilty of many acts of bad faith but so are most of their followers. Such an elevated level of dishonesty and lack of moral character this country has never seen. And they claim to be the moral party too! It is sickening to witness what conservatives have done to our great nation and in so little time.

I support War Crimes trials and believe the cost of not conducting them is far higher than the whiney laments of the guilty about how it will drag our country down. No, actually it will lift us from the moral dungeon the modern day conservative has inflicted upon us.

As I've stated since 2002, Bush for Prisoner.

Barack's first order of business is an extradition treaty with Paraguay. I can't wait to see our special forces going in there and hog-tying the disgraced former president while cutting Paraguayan brush. Haul him back to Gauntanamo. Find out who did what and when. The coward will squwak in no time. Only then can this nation heal. Who cares about the whiney cries of the manifestly guilty?

Posted by Eric Anderson | April 11, 2008 3:11 AM

I have only one question.

Do lieberal bedwetting moonbats foam at the mouth with breathless anticipation when contemplating some way to hurt President Bush?

Or is it some sort of other deviant thought process that gets them so fanatical?

Posted by John Steinbeck | April 11, 2008 4:53 AM

This is what you need to know: virtually choreographing "interrogation sessions" or, in other words, "micromanaging torture" during White House meetings is an illegal agreement to violate the laws against torture -- a conspiracy. There is a specific federal statute found at 18 USC 2340A(c) -- it covers conspiracy to commit torture. Those convicted of torture conspiracy face life sentences.

Bush and his Republican supporters in Congress fiddled with the effective dates of the War Crimes Act, sought to redefine terms in the Geneva Conventions, and tried to give legal defenses to the hands-on torturers with the Military Commissions Act of 2006 and the Detainee Treatment Act of 2005. But they never succeeded in amending the anti-torture statutes found at 18 USC 2340 and 18 USC 2340A.

It's a mistake to think the War Crimes Act or the Geneva Conventions are the exclusive statutes for prosecution of crimes committed during wartime. The anti-torture statutes found at 18 USC 2340 and 18 USC 2340A implement the international Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and are applicable during both times of peace and times of war. Although nothing in the anti-torture statutes give a territorial limitation, it's becoming pretty clear that torture conspiracy pursuant to 18 USC 2340A(c) occurred within the continental United States -- right in the White House.

Sure, Bush tried to redefine the meaning of torture with John Yoo's memos from the Office of Legal Counsel. But those memos could not trump explicit, black letter anti-torture statutes saying something contradictory -- no matter how many lawyerly-looking pages Yoo wrote. And nobody at this late date believes John Yoo's memos were ever good law. Bush, et al, are left naked against the anti-torture statutes.

A prosecutor has discretion to choose under which statute to charge a defendant. It doesn't have to be the neutered War Crimes Act or the definitially "tweaked" Geneva Conventions. It can be the pristine anti-torture statutes found at 18 USC 2340 and 18 USC 2340A.

Posted by Nick Jackson | April 11, 2008 5:05 AM

"Indeed, the director of the CIA, Michael Hayden, shares my conjecture. He recently agreed to purchase, at $300 a pop, legal liability insurance for about two thirds of his agency's workforce, including virtually all of the National Clandestine Service, precisely to protect against any future administration's attempt to hold officers legally accountable for their actions."

I want to make sure that I understand this jewel of liberal illogic. If someone buys insurance to protect them against certain types of liability, they are in fact liable. The mere fact that a doctor buys malpractice insurance means that he is in fact guilty of malpractice? If a person has liability coverage on their auto insurance, they are in fact liable for any accident they may be part of? Brilliant. More likely Hayden knows how irrational and vindictive Democrats are so he wants to protect himself in the event they go on a political witch hunt.

By the way, since the idiots on this thread are merely principaled opponents of torture, as opposed to ignorant partisans, I am sure that they all favor the prosecution of Nancy Pelosi, Jay Rockefeller, Bob Graham and Jane Harman since they were all briefed on the enhanced interrogation techniques (water boarding, etc.) that Democrats are now calling torture and they all approved of these techniques.

Posted by jt007 | April 11, 2008 5:56 AM

Can the president pardon people for crimes that they haven't even been charged with yet?

Ford did so when he pardoned Nixon.

Posted by David Tomlin | April 11, 2008 6:13 AM

It is the Supreme Court of the US and US Constitution, Congress and Executive which determines the law of the land in the US. The ICC and International law are fictions, not law of any sovereign government. Unfortunately they have become weapons to attack political opponents. The attempt by various European governments to intrude into events in other nations is more of the statism, imperialism and self-rightousness which some political partisans attempt to impose on the rest of us.

Posted by eli | April 11, 2008 8:12 AM

As I understand it, Pres. Ford pardoned Mr. Nixon because of an evaluation that the cost to the country's welfare and best interests would be greater than the gains to justice in punishing this single individual. Litigation taking a year or more would have paralyzed normal civil discourse and of course partisanship would have been raised to unprecedented levels; many anti-Nixonites forget or never knew that there were still plenty of Republicans who would've been aghast at criminal prosecution (different from impeachment and removal) of a former president. The poster above who theorizes that prosecution of the Bush administration would virtually stop the show and prevent Democrats from enacting their agenda, and lead to civil disorder, seems about right. That this suggestion is pooh-poohed by some is further proof of its correctness: prosecution of an administration will raise the temperature of our usual divisions way beyond the boiling point. And that it would involve despised international law and international organs, at least peripherally, adds to the fever pitch. But if this is what the Dems want, I'm going to enjoy the greatest show on earth.

Posted by Rodger Lodger | April 11, 2008 9:04 AM

If one reads Shirer's book "The Nightmare Years" about the rise of Nazi Germany, the reader will find, in the last chapters, the Allies tried and hung Nazis for such vague crimes as "genocide", "crimes against humanity" and "subverting the state".

These are war crimes that may well have been perpetrated by the neo-cons and many of those presently in power in Washington. It would be very interesting to see charges and verdicts in a tribunal such as the Hague free of influence from Washington.

United States invaded Iraq using as a pretext patent lies and fear mongering. Destroyed a centuries old civilization, destabilized a government, killed hundreds of thousands of innocent civilians, has loosed upon the conquered nation a pandora's box of old tribal animosities for what purpose? Oil? Neo-con need for use of mindless military force and power?

Of course there were and are war crimes. None of which will ever be prosecuted, which will mean that we learned nothing. A phony pretext was used as a reason to kill millions in Viet Nam, the so called Gulf of Tonkin incident. Lt. Calley murdered 300 unarmed children, women and old men and went virtually unpunished.

A war crimes tribunal is in order, but it will not happen and the decline of US power and influence will continue throughout the world as well it should.

Posted by Tom | April 11, 2008 11:02 AM