Bush Attempting to Pardon Himself For His War Crimes

If George Bush really believed his conduct was legal, he would not be so determined to make sure he could not be prosecuted for his conduct in office. Former New York Congresswoman Elizabeth Holtzman has an op-ed in The Chicago Sun Times in which she argues that for all practical purposes Bush has buried his own “pardon” for war crimes, similar to Gerald Ford’s pardon of Richard Nixon, in current legislationon the handling of detainees:

Avoiding prosecution under the War Crimes Act has been an obsession of this administration since shortly after 9/11. In a January 2002 memorandum 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. As an author of the 1978 special prosecutor statute, I know that independent counsels (who used to be called ”special prosecutors” prior to the statute’s reauthorization in 1994) aren’t for low-level government officials such as CIA interrogators, but for the president and his Cabinet. It is clear that Gonzales was concerned about top administration officials.

Gonzales also understood that the specter of prosecution could hang over top administration officials involved in detainee mistreatment throughout their lives. Because there is no statute of limitations in cases where death resulted from the mistreatment, prosecutors far into the future, not appointed by Bush or beholden to him, would be making the decisions whether to prosecute.

To ”reduce the threat of domestic criminal prosecution under the War Crimes Act,” Gonzales recommended that Bush not apply the Geneva Conventions to al-Qaida and the Taliban. Since the War Crimes Act carried out the Geneva Conventions, Gonzales reasoned that if the Conventions didn’t apply, neither did the War Crimes Act. Bush implemented the recommendation on Feb. 7, 2002.

When the Supreme Court recently decided that the Conventions did apply to al-Qaida and Taliban detainees, the possibility of criminal liability for high-level administration officials reared its ugly head again.

What to do? The administration has apparently decided to secure immunity from prosecution through legislation. Under cover of the controversy involving the military tribunals and whether they could use hearsay or coerced evidence, the administration is trying to pardon itself, hoping that no one will notice. The urgent timetable has to do more than anything with the possibility that the next Congress may be controlled by Democrats, who will not permit such a provision to be adopted.

Creating immunity retroactively for violating the law sets a terrible precedent. The president takes an oath of office to uphold the Constitution; that document requires him to obey the laws, not violate them. A president who knowingly and deliberately violates U.S. criminal laws should not be able to use stealth tactics to immunize himself from liability, and Congress should not go along.

 

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