I've posted this in the past, but in light of recent revelations:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=3136944&mesg_id=3136944it is certainly meaningful.
http://www.truthout.org/docs_2006/111407R.shtml Beyond Mukasey's Confirmation, White House Liability Issues Loom Large
By Elizabeth Holtzman
t r u t h o u t | OpEd
Tuesday 13 November 2007
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.
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http://www.commondreams.org/views06/0923-22.htmPublished on Saturday, September 23, 2006 by the Chicago Sun-Times
Bush Seeks Immunity for Violating War Crimes Act
by Elizabeth Holtzman
Thirty-two years ago, President Gerald Ford created a political firestorm by pardoning former President Richard Nixon of all crimes he may have committed in Watergate -- and lost his election as a result. Now, President Bush, to avoid a similar public outcry, is quietly trying to pardon himself of any crimes connected with the torture and mistreatment of U.S. detainees.
The ''pardon'' is buried in Bush's proposed legislation to create a new kind of military tribunal for cases involving top al-Qaida operatives. The ''pardon'' provision has nothing to do with the tribunals. Instead, it guts the War Crimes Act of 1996, a federal law that makes it a crime, in some cases punishable by death, to mistreat detainees in violation of the Geneva Conventions and makes the new, weaker terms of the War Crimes Act retroactive to 9/11.
Press accounts of the provision have described it as providing immunity for CIA interrogators. But its terms cover the president and other top officials because the act applies to any U.S. national.
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.
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