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Justice vs Practicality - The Bush Years

by rdf Sun Jan 11th, 2009 at 03:44:03 PM EST

There is much talk lately about what should be done about all the illegal acts committed during the Bush administration. The Democrats are already talking about "moving forward" and not focusing on the past. This is a claim to practicality, but is just an excuse.

There have been clear indications for much of the past 50 years that GOP administrations are more willing to violate the laws. These fall into two broad categories. The easier one to deal with has to do with standard corruption. Selling government influence, taking bribes in the form of campaign contributions or promises of future employment, or favors while in office.


This has become especially outrageous during the Bush years as a total lack of desire to prosecute, or even investigate such misdeeds, rose to an unprecedented state. Even private firms have become generally immune to punishment for violating the law.

The second violation of the law has to do with government actions meant to further legitimate aims, but which themselves break the laws to achieve their aims. Right now those in the forefront have to do with sanctioning torture, violating the privacy provisions of the Fourth Amendment and obstructing investigations by the legislative branch.

As the Clinton years showed the GOP is willing to use legal mechanisms for political aims. The impeachment of Clinton being the pinnacle of their efforts. There were many others, including the refusal to allow federal judges to be seated and misuse of the filibuster.

Now if the Dems turn around and start to prosecute the violations of government policy the they will run the risk that the next time the GOP is in power they will even engage in more politically motivated persecutions. This is what happens in third world countries which only pretend to be democracies. At each change of government all the prior leaders are at risk of prosecution. Such a course of action leads to the complete destruction of any adherence to the rule of law. Since the GOP has already shown that they are willing to play this game, timidity by the Dems is unwise. You don't defeat a bully by giving in to him.

So what should be done?

I suggest two courses of action. The activities which are based upon traditional monetary corruption should be left to the appropriate judicial departments to investigate. This, of course, means that the hacks and cronies have to be removed from the departments. Obama seems to be making some moves in this direction, but a lot depends upon appointments of US Attorneys and the willingness of local jurisdictions to investigate regional crimes. The regulatory agencies have to be restored as well.

As for policy-based misdeeds. There needs to be away to counter the already-forming critique that any investigations are just "partisan politics". Existing law protects most government officers even if they do the most stupid or ill-conceived things as long as they do them in good faith and as part of their official duties. So "heckuva job" Brownie never gets charged for being incompetent.

There is nothing to stop congress, however, from holding hearings on what went wrong and who was responsible. This is similar to the truth and reconciliation commissions that have arisen elsewhere. I'm not sure about the forgiveness part of the process, people in the US don't seem very willing to ever admit to a mistake or apologize.

In addition to hearings, the Obama administration should sign the treaty which established the International Criminal Court. If there are injured parties, say Guantanamo detainees, who want to bring charges at the ICC then this would allow them to do so. International law allows countries to arrest people accused of being war criminals as the UK did with Pinochet. If the ICC decides to issue a warrant for Gonzales or Cheney or Rumsfeld then this is not a political act by the Obama administration.

If the US is not willing to adhere to international law, including taking responsibility when it breaks it, then why do they expect others to do so. We are quick to condemn Al Qaeda or Hamas for their actions, but don't want to be judged for ours. This is not the rule of law, it is the law of the jungle - might makes right.

How about, Mr. Constitutional Lawyer president? Join the ICC.

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There's another great way to avoid the charge of partisan politicking: Prosecute the war criminals from Clinton's terms as well. It would do wonders for the Democratic Party, I think, to have some of its own top-level apparatchiks up on charges of violation of international law.

Would give a lot more room for the grass roots too.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sun Jan 11th, 2009 at 04:07:10 PM EST
I'm not familiar with US law, but the appointment of a "Special Prosecutor" in the Clinton era seemed pretty effective -if totally partisan.  However the appointment by congress of such a prosecutor with extensive powers and resources should keep the GOP criminals busy tying to defend themselves for the next 4 years whilst keeping the whole process at arms length from the Obama administration itself.  

Keeping the GOP on the defensive seems a reasonable political strategy whilst at the same time having all the benefits of reasserting the rule of law.

Obama should go further than just joining the ICC - he should promulgate a Treaty requiring all UN member states to extradite their citizens to appear before the Court.  Otherwise no powerful US citizen will ever appear before the court in any case.

This is one of those issues where Congress will have to take a lead however.  It has to make Obama do it to make it appear he is not acting in a partisan fashion.

notes from no w here

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sun Jan 11th, 2009 at 06:41:27 PM EST
I think the President appoints special prosecutors, not Congress.

The ICC would require Congress to ratify it anyway, so Obama isn't really the issue.  I believe Clinton supported it, but, as with Kyoto, obviously it didn't have a snowball's chance in Hell under Gingrich.  As it would apply equally to Obama, I don't see the obvious partisan politicking inherent to supporting it.  If anything, it could be sold as imposing accountability on politicians, which is fairly popular at the moment with the public.

As to prosecuting Junior, that's up to Eric Holder, assuming he's confirmed (unfortunately he seems to be the one nominee the Reps are trying to stop).  He's been getting an earful on it from the grassroots activists (even responded with "Enough, folks, I hear you"), but I doubt they're going to prosecute, because it's too easy to take the chickenshit way out.  That said, even if they were planning to, they wouldn't say so, because Bush would simply start issuing blanket pardons.

Be nice to America. Or we'll bring democracy to your country.

by Drew J Jones (pedobear@pennstatefootball.com) on Sun Jan 11th, 2009 at 11:32:46 PM EST
[ Parent ]
I just got a letter from the fine Ms Feinstein telling me that this was the time to end partisanship and let the criminals waltz on their merry way.

Cool.

Anybody checked the ICC site, where they list all the signatory states? http://www.icc-cpi.int/statesparties.html - perhaps someone can tell me an alternative name for Chile, since I don't see it there.

Pray tell. Does this mean that (from the ICC site), the "jurisdiction of the ICC will be complementary to national courts, which means that it will only act when countries are unable or unwilling to investigate or prosecute."

Sounds like the state that the US is in. Bush can pardon his ass from here to ubiquity and all I think of is him getting taking down 1 ICC Lane for the trial of the century.

All it will take is some country to charge his ass. What is that country starting with 'V' on the list? Anyone can get the ball rolling. All they have to prove is that the homeland apparatus isn't taking care of the potential case that the ICC would then have jurisdiction over. That Bush pardons himself or that Senate Intelligence Committee Chair Feinstein won't even consider looking into the matter, all the better since it will be all the more clear.

I'm kidding about Venezuela. I don't think that they would be the right country. Spain would be cool. They could get known for this and expiate a lot of their past.

Never underestimate their intelligence, always underestimate their knowledge.

Frank Delaney ~ Ireland

by siegestate (siegestate or beyondwarispeace.com) on Mon Jan 12th, 2009 at 03:51:10 PM EST
[ Parent ]
What's wrong with the cheese eating surrender monkeys showing some spine?  Ah yes, I remember, Sarkozy wants to play with the big boys...

notes from no w here
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Mon Jan 12th, 2009 at 03:55:32 PM EST
[ Parent ]
Settled then~! Ireland will be the one to volunteer Cheney and his government for the stockade at Bruxelles. Huzzah~!

Don't connect it to our man O'Bama though.

Never underestimate their intelligence, always underestimate their knowledge.

Frank Delaney ~ Ireland

by siegestate (siegestate or beyondwarispeace.com) on Tue Jan 13th, 2009 at 02:24:31 AM EST
[ Parent ]
We'll catch him on a stopover in Shannon - seeing as he used it for rendition flights...

notes from no w here
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Tue Jan 13th, 2009 at 08:18:29 AM EST
[ Parent ]
Ah well under the torture convention, If a country has an extradition treaty for anything, (even in the hypothetical case that extradition only exists for shoplifting) then if your country is a signatory of the Torture convention (and the US has ratified that one too) then Torture is automatically included in the treaties, whether its included or not.

Of course as a practical matter extradition may prove more difficult. Somebody gets the chance to try in ten days if they fancy it.

Any idiot can face a crisis - it's day to day living that wears you out.

by ceebs (ceebs (at) eurotrib (dot) com) on Mon Jan 12th, 2009 at 09:33:17 AM EST
[ Parent ]
So could Cheney be tried under Geneva?  Or only within the USA?  Could he be extradited to (say) Iraq? If Obama joined ICC could he be extradited to The Hague even if his actions took place prior to joining? Is Gitmo US sovereign territory or is it legally part of Cuba?

I would be interested in reading what legal remedies are available to someone who was tortured by the USA under Cheney authority - provided they have the resources and support required to follow it up...  Sometimes these things are best done by individual court action so that accusations of partisanship cannot be applied...

notes from no w here

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Mon Jan 12th, 2009 at 09:51:46 AM EST
[ Parent ]
From my admittedly patchy reading. It would be easier to prosecute virtually anwhere other than the USA.

Well lets start with Geneva

US CODE: Title 18,2441. War crimes

(a) Offense.-- Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death. (b) Circumstances.-- The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act). (c) Definition.-- As used in this section the term "war crime" means any conduct-- (1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party; (2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907; (3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or (4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

Now Cheney falls under the act being a national of the United States (unless he manages to become Paraguayan by the time Bush is out of office) But honestly Bush is more likely to fall under the scope of this act unless there is a real solid paper trail, as theoretically Cheney is outside the chain of command. But several acts are definite war crimes under the terms of the Geneva convention.(although once again, a lawyer may argue that as there is no longer a war this may not apply.

Under the Fourth convention relating to the treatment of Civilians I think that a few people in the administration would be in trouble under article 3(1)a

International Humanitarian Law - Fourth 1949 Geneva Convention

Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

And as we know that several prisoners in Abu Ghraib (and I think Guantanamo) have died then under US law then the death penalty comes into play.

Could Iraq extradite?

UN Convention Against Torture

  1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

Iraq has an extradition treaty with the US, ratified in 1936, so according to the convention,  Thats a big yes. and I'm sure theres film of Bush and Cheney talking about the legality and fairness of the Iraqui legal system, at the time of the execution of Sadam Hussein, so the avoidance of extradition would be a touch convoluted.

There are Three things that give a state authority over torture cases.

UN Convention Against Torture

  1. When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
  2. When the alleged offender is a national of that State;
  3. When the victim was a national of that State if that State considers it appropriate.

So any state whos nationals have been tortured has a legal possibility of extraditing any of the gang. So the legal nationality status of Guantanamo isn't really relevent if an external country wishes to extradite.(I've regularly asked, and never got a satisfactory answer as to wether presidential pardons cover extradition. I cant find anything that says they do, but I may just not have read enough)

As to the ICC, i'd have to pass on that. I do know that the ICC only steps in if the nation involved finds it impossible to proceed with a court case, or refuses to prosecute. (in that case its generally hard to lay your hands on the defendant) so the ICC becoming involved would only happen if Obama refuses to prosecute.

The second part probably needs more than the amateur legal mind than I posess. But I will have a look if you want.


Any idiot can face a crisis - it's day to day living that wears you out.

by ceebs (ceebs (at) eurotrib (dot) com) on Mon Jan 12th, 2009 at 10:53:27 AM EST
[ Parent ]
ceebs:
The second part probably needs more than the amateur legal mind than I posess. But I will have a look if you want.
Don't worry - I was hoping you might have a reference to a suitable legal discussion.  I would hope that some, at least, of the GITMO victims might take a war crimes case...

notes from no w here
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Mon Jan 12th, 2009 at 01:42:07 PM EST
[ Parent ]
I do have a link on my other machine, but It's in pieces in boxes under other things. so isn't instantly available.

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Mon Jan 12th, 2009 at 02:00:55 PM EST
[ Parent ]
Eight days, not ten.  We're well into the countdown.

Be nice to America. Or we'll bring democracy to your country.
by Drew J Jones (pedobear@pennstatefootball.com) on Mon Jan 12th, 2009 at 10:02:59 AM EST
[ Parent ]
I was adding an extra couple of days for the party to wind down and the hangover be dealt with.

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Mon Jan 12th, 2009 at 10:54:24 AM EST
[ Parent ]
This from the front page of the NY Times:

Obama Signals His Reluctance to Look Into Bush Policies

President-elect Barack Obama signaled in an interview broadcast Sunday that he was unlikely to authorize a broad inquiry into Bush administration programs like domestic eavesdropping or the treatment of terrorism suspects.
...
In the clearest indication so far of his thinking on the issue, Mr. Obama said on the ABC News program "This Week With George Stephanopoulos" that there should be prosecutions if "somebody has blatantly broken the law" but that his legal team was still evaluating interrogation and detention issues and would examine "past practices."

Mr. Obama added that he also had "a belief that we need to look forward as opposed to looking backwards."

As I said above the Dems are basically timid and are afraid to leave themselves open to retaliation by the GOP at some point in the future.

So it will be up to the international community to seek justice. I don't think it is necessary to extradite and try some of the worst US actors, hearings can be quite effective. They serve to set the record straight so that these people can't rewrite history to make themselves look good and they also give those who have been harmed some feeling that their suffering has been acknowledged.

Punishment is a form of revenge, while what most victims really want is an apology. Doctors who apologize for medical mistakes seldom get sued, while those who are arrogant about their failures do.

Policies not Politics
---- Daily Landscape

by rdf (robert.feinman@gmail.com) on Mon Jan 12th, 2009 at 10:17:46 AM EST
capital if he tried to do this himself.  This is one of those initiatives that best comes from Congress or private individuals/advocacy groups through the courts, or better still from a foreign state and ally.  Obama can then claim to be just addressing an issue created by others without having had any personal political motives.

notes from no w here
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Mon Jan 12th, 2009 at 01:45:46 PM EST
[ Parent ]
test
by Colman (colman at eurotrib.com) on Mon Jan 12th, 2009 at 03:58:17 PM EST
test agin
by Colman (colman at eurotrib.com) on Mon Jan 12th, 2009 at 03:59:05 PM EST
of Bush statements upon his "leaving"(note that there is a massive Homeboy Insecurity "drill" scheduled for this Tuesday,one week BEFORE the official changing of the guard actually takes place)...where was I...Oh..yeah...what Bush says about Mission Accomplished being a mistake....yeah....high level government involvement in the planning, execution and then cover up of 911 was like a mistake?
Passify the proles.....at all cost.
Justice? Rule of law?  Rational debates and solutions to the problems of all mankind?  From America?

Ya, I have this Apocalyptic horse.  He tags my jacket for a treat

by Lasthorseman on Mon Jan 12th, 2009 at 08:29:00 PM EST


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