1 Boring Old Man

Beyond Mukasey’s Confirmation, White House Liability Issues Loom Large

Though it failed to send his nomination the way of Robert Bork, attorney general nominee Michael Mukasey’s evasiveness on the definition of torture has done something historic. It has made it unmistakably clear to mainstream observers that the president may be criminally liable for violating anti-torture laws. Criminal liability of this White House will have wider repercussions than Mr. Mukasey’s confirmation. It will reverberate through his tenure as attorney general and beyond the end of the Bush administration. We now know that the reason Mr. Mukasey refused to acknowledge that waterboarding meets the legal definition of torture, or at the very least cruel, degrading and inhuman treatment, clearly had nothing to do with not being briefed about the procedure. If he didn’t know at the time of the Senate committee hearing, he certainly learned afterwards that the US had considered waterboarding criminal and prosecuted it for at least a century. The real reason, as mainstream news analysts now acknowledge, was that publicly admitting waterboarding is torture or cruel and inhuman would have put the president in jeopardy of criminal charges.

The War Crimes Act of 1996 makes cruel, inhuman and degrading treatment of detainees a violation of the Geneva Conventions and a federal crime. In addition, a 1994 law, 18 USC Section 2340 (a), makes it a federal crime to engage in torture outside the US, and it also applies to those who conspire with (or aid and abet or order) torture outside the US. Both statutes apply to any US national, including the president, the vice president and other top officials, as well as subordinates, such as CIA officers or other US personnel. If the president ordered, directed or authorized waterboarding or other forms of torture or mistreatment, he may have violated these laws. They carry the death penalty in cases where the victim dies. In such cases there is no statute of limitations, so the president could be subject to prosecution for the rest of his life. Some contend that imposing criminal liability for acts performed in the heat of combat is wrong and that we can’t hold the administration to 20/20 hindsight. But we know these acts were not spontaneous, but part of a premeditated pattern of legal manipulation dating back years. At least since 2002, President Bush, Attorney General Gonzales and possibly others, including Vice President Cheney, knew that torture and detainee mistreatment entailed criminal liability, which they sought to defuse with novel legal theories and retroactive suspensions of established law.

In a February 2002 memo, then-White House counsel Alberto Gonzales warned President Bush about exposure to criminal liability under the War Crimes Act, mentioning the danger that future independent counsels or prosecutors might seek to enforce the law (they generally prosecute top government officials, including presidents). He therefore recommended opting out of the Geneva Conventions, famously calling them "obsolete." His theory was that if the Conventions didn’t apply, then the War Crimes Act wouldn’t apply, so no prosecutions could be brought. The president accepted Gonzales’s theory and suspended the Conventions’ protections for suspected al-Qaeda detainees. But in June 2006 the Supreme Court rejected this theory and held the Geneva Conventions applicable to the treatment of all detainees, leaving the president open to liability for violating the War Crimes Act. So in October 2006 the White House effectively pardoned itself by slipping a little-noticed provision into the Military Tribunals Act, conferring effective immunity from the War Crimes Act on high-level officials by making it retroactively inoperative, from 1996 to 2006. Public attention was focused on habeas corpus and other controversial provisions in the bill, so it passed more or less unscrutinized.

In Archibald MacLeish’s play, J.B. [about the biblical character Job], the chorus repeats, "If God is God, he is not good: if God is good, he is not God," framing the dilemma of misfortunes among the righteous. But what of the non-righteous? For reasons yet to be made clear to us, President Bush and Vice President Cheney instituted military programs of torture from the very start in our wars in Afghanistan and Iraq – from the very start. We’ve never had a policy of doing that before and have, in fact, championed safeguards against torture in wartime. They’ve yet to explain why they made this a policy change, but , as usual, kept their policy from us until the Abu Ghraib scandal laid it front of us [and the rest of the world]. They garnered a number of absurd legal decisions to support this policy, and then later snuck in some provisions to grant themselves retrospective immunity from ordering such policies – all of which seems very shaky to me. They are, in essence, pardonning themselves.

Now, we’ve removed the pretend Attorney General, Alberto Gonzales, and have a new, hopefully real, Attorney General. In spite of his being a Bush Appointee, he’s a Federal Judge who is presumed to be a real Attorney General. As in MacLeish’s play, if he’s a real Attorney General, he’ll have to deal with all kinds of criminal behavior on the part of the Bush Administration [domestic wiretapping, torture, illegal detention without habeus corpus, etc., U.S. Attorney firings] and he can’t be a "Bushie" like his predecessor. If he is a loyal "Bushie," he’s can’t be a real Attorney General. And so he takes office sitting at the center of a truly impossible situation. In fact, if he is a real Attorney General, he won’t even be involved in making decisions about these matters, leaving the U.S. Attorneys to deal with any prosecutorial decisions independently. And what about these after-the-fact bills that absolve officials from consequences for breaking laws? Are they legal? And will the big question of their knowingly invading Iraq on false pretenses ever come up in a court of law?

Why did the Administration do these things? There’s been no compelling evidence that it helped us. It’s clear that it hurt us in the eyes of the world. And more, it’s hurt us in our own eyes. We were the "good guys." No more. And why? Why did they even think up such a policy in the first place? from the very start? It resonates with other similar decisions – like essentially renouncing the U.N. and our committment to the U.N. Charter. Right now, John Bolton is on the talk show circuit pushing his new book, Surrender is not an Option, [which I am not likely to read] but from his interviews apparently proposes that we’ve been "chumps" and played things too straight – so it’s time to take the gloves off and fight dirty like everyone else. Where did this all come from? Who thought it all up? Who put it into action? AG Mukasey is going to have to deal with these questions in a variety of forms daily – with the office he holds and political loyalty to the Administration at diametric poles.