The legacy of the Shrub

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Not to be a nitpick, but I do not think the President has the ability to pardon himself. You can't pardon someone before they are convicted of a crime, and once he's convicted of a crime at an impeachment hearing, he ceases to be president. Of course, this administration loves the concept of "pre-emption", and so if it looked like it was coming to that Bush may attempt to pre-emptively pardon himself... I just don't think that's normally part of presidential power.

 

Yes, I had read that Powell and Rumsfeld could not even be in the same room together by the end of Powell's tenure. It may only be of secondary importance to you - and by that remark you sound like a typical American in that regard - but the fact remains that they used Powell's sterling reputation to sell the War in Iraq. And only later to disgard him as just another dissenter at the end of GWB's first term. It is an experience that Powell now refers to as a very "painful" one. It is of primary importance to me because an honorable man lost his reputation through no real fault of his own. The dishonorable men who did this to him represent, at least IMO, one of the very negative aspects of how the Bushmen have conducted themselves.

 

Maybe not literally pardoning himself, but pardoning others to prevent prosecutions and eventually verdicts over the legality of what Bush ordered done? Certainly. If not technically and legally correct it means just that for all practical purposes.

In a memorandum from January 25, 2002 to the president, then-White House Counsel Alberto Gonzales pointed out the problem of prosecution for detainee mistreatment under the War Crimes Act. He notes that given the vague language of the statute, no one could predict what future "prosecutors and independent counsels" might do if they decided to bring charges under the act. Independent counsels aren't for low-level government officials such as CIA interrogators, but for the president and his Cabinet. It is from that quite clear that Gonzales was concerned about top administration officials, including the president himself.

There is a little known episode from 2006, when CIA interrogators looked up the law, consulted their lawyers and to their horror found that what they did with great probability set them up for prosecution under US code. They refused to work. Also, pressure mounted from other directions, most notably with the verdict in the Hamdan case. All this eventually forced Bush's hand in giving them legal cover. What happened was an amendment to the Military Commissions Act of 2006.

Now what? As amended by the Military Commissions Act of 2006 (MCA, P.L. 109-366), the War Crimes Act now criminalizes only specified Common Article 3 violations labeled as “grave breaches.” Previously, any violation of Common Article 3 constituted a criminal offense. Guess what, I think there was a reason for that change. And then, there is the retroactive immunity clause for everything that happened between September 11, 2006 and December 30, 2005. If the amendment of the War Crimes Act is any indication, the need to insert to retroactive immunity clause suggests strongly that Gonzales' legal suggestions from January 2002 were not correctly reflecting on the actual legal situation.

I would go so far as to say that Gonzales probably was fully and acutely aware of that, just like Bybee, Yoo and the rest of the bunch. Considering the answers they gave they were responding to a request that went along the line: I want to beat up my wife so she won't show bruises, now tell me how far I can go under a generous reading of the law, and if I get into trouble anyway, what can I say in my defense then?

Anyway, the political benefit of these changes for Bush is that there won't be an independent counsel on this against him. Bush now can say that congress has already retroactively legalised the actions of anyone who acted on Bush's orders, how can they then accuse, investigate or prosecute him for ordering it?

Links for those who're interested:

• Military Commissions Act of 2006 (PDF link)
• Detainee Treatment Act of 2005
• Section 2441(c)(3) of title 18, United States Code, what they feared would come down on them

In case of the telecom amnesty, the 'pardon' that was pliantly handed to Bush served two purposes: To render retroactively legal the President's illegal spying program by legalizing its crux: warrantless eavesdropping on Americans, and to stifle forever the sole remaining avenue for finding out what the Government did and obtaining a judicial ruling as to its legality: namely, the lawsuits brought against the co-conspiring telecoms.

Nah, it's just that my posts are long enough, I try to focus, and I'm out for a bigger fish today. But you are right in saying it is a fish

 

Ford, Nixon, 1974.

 

Elaboration

• 
  It is fascinating from a lawyer's point of view that it is possible to, just by looking at the changes made, distil legislative intent from the genesis of a legal document.
  
  Obviously things were done to detainees that in a conservative reading of the law constituted breaches of the Geneva conventions. Only then the retroactive immunity makes sense. The administration wanted to keep doing these things, so they factored out what they wanted to keep doing and narrowed down criminality only to those things they did not want to do and called those 'grave breaches' and catalogued them in the revised act.
  
  After the changes, only actions that are catalogued as "grave breaches" are punishable as a war crime under US code. That means that other measures that constitute breaches of the Geneva Conventions but fall short of the catalogue in the revised Section 2441(c)(3) of title 18 still violate the Geneva Conventions, but the changes in the law prevent their prosecution in the US.
  
  The legislative history in itself offers a de-facto admission that between September 11, 2006 and December 30, 2005 the administration in context of interrogations and detentions had in fact ordered breaches of the Geneva Conventions that constituted criminal acts under US code. Thanks to the changes US presidents can now, without criminal liability in the US, order breaches of the Geneva Conventions that fall short of grave breaches. Quite the legacy.
  .
• As for the unintended consequences: In the Hamdan decision, Justice Kennedy reminded the Administration that Common Article 3 of the Geneva Conventions was binding upon them, and that a violation could constitute a criminal act. Haynes, Rumsfeld's General Counsel at the Department of Defense, informed of the decision over lunch, was reported to have turned “white as a sheet” and to have immediately excused himself.
  
  The revision of US code settles the question of a criminal act only for the US domestically. The domestic impunity/immunity in the US is the very thing that opens up US officials for prosecution abroad. For breaches of Geneva there is universal jurisdiction. One who tortures, who violates the commands of the Geneva Conventions or the ill-treatment clause of the CAT, is hostis humani generis, an "enemy of mankind". That means, that if a nation is unwilling to prosecute such individuals, it is up to everyone else to do it instead. When Rumsfeld was accused of war crimes in Germany the Generalbundesanwalt refused prosecution not because no crimes were committed, he didn't even delve into this, but merely on grounds that it is first up to the US to do that.
  
  The retroactive immunity clause and the changes in US code have made it sufficiently clear that there is no intent in the US to prosecute such acts, in particular breaches of Geneva. That means everybody else is entitled to step in instead and do so. I predict that it is just a question of time until some hapless administration official who participated in this, picks the wrong place for changing flights and is arrested under war crimes charges or because of a request for extradition because of such charges.