Legal Options to Restore a Crumbling Constitution

Our enemies didn't adhere to the Geneva Convention. Many of my comrades were subjected to very cruel, very inhumane and degrading treatment, a few of them even unto death. But every one of us -- every single one of us -- knew and took great strength from the belief that we were different from our enemies, that we were better than them, that we, if the roles were reversed, would not disgrace ourselves by committing or countenancing such mistreatment of them. - John McCain, Republican US Senator

Shamefully we now learn that Saddam's torture chambers reopened under new management, U.S. management. - Edward Kennedy, Democratic US Senator

The debate here isn't only how to protect the country. It's how to protect our values.If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America -- even those designated as 'unlawful enemy combatants.' If you make this exception the whole Constitution crumbles. - Alberto J. Mora, former Navy General Counsel (2006)

In a country that - once anyway - prided itself as being governed by law I find it hard to believe that no indictments have been brought in for Bush administration personnel on charges of torture.

One legal avenue for that was removed when soon to be elected Speaker of the House Nancy Pelosi took it off the table. The impeachable offenses would have included misleading the nation about weapons of mass destruction and violating federal law by approving warrantless wiretaps on Americans. Torture wasn’t on the list at the time, but one assumes that if hearings on impeachment had begun in the House, it would have been added to the list.

There was no little hypocrisy in finding only a couple of lower level soldiers guilty for the treatment of prisoners at Abu Ghraib when the techniques used there had been discussed and approved at the highest levels of the Bush administration. The standard reply by the administration was that they didn’t sanction torture. How many times did you hear the President and other members of his cabinet recite the mantra, “We do not torture”? John Yoo did all kinds of legal contortions in a couple of memos to say that what was torture wasn’t.

What the administration called “enhanced interrogation” methods are indistinguishable from the original directive by Gestapo chief Heinrich Müller in 1937, "Verschärfte Vernehmung," methods that were deemed by our Allies in Norway in 1948 adequate to convict three Germans for war crimes.

When it was revealed two weeks ago that the methods of torture were approved at the highest levels of the Bush administration and then confirmed by Bush himself that he authorized the discussions, how could American citizens rationalize this authorized torture?

The revelations have sparked some response. The ACLU has called for the appointment of an independent prosecutor and others have called for the resignation of then head of the National Security Council, Condoleezza Rice. There have begun to be some rumblings in the legal community. Spencer Ackerman’s article (April 18, 2008) in The Washington Independent reports:

With nine months remaining in President George W. Bush's term, virtually no legal analyst expects that anyone in his administration will face indictment and prosecution in connection with the torture of terrorism detainees. However, a new admission from Bush last week has some legal analysts contending that the case for such prosecution has gotten significantly stronger.

Ackerman queried several legal scholars. According to Erwin Chemerinsky, a civil liberties expert at Duke University,

"I predict that there will be calls for top administration officials to be prosecuted in an international court for war crimes. This meeting supports the involvement of top officials -- including the president -- in approving torture."

Aziz Huq, director of the Liberty and National Security Project at New York University’s Brennan Center for Justice, agrees:

"If you, as an individual, order such conduct, you're culpable under the aiding-and-abetting provision of federal law. There is at least a colorable theory, a credible case, for federal criminal liability here."

A former lawyer in the Justice Department’s Office of Legal Council who teaches law at Georgetown University, Martin S. Lederman, said

"In my view this is all patently illegal on many different grounds -- particularly as a violation of Common Article 3" (of the Geneva conventions). But as a practical matter, there's little likelihood of any legal exposure -- and virtually none of domestic federal prosecution, because the president and DOJ concluded it was legal."

So, let me be clear about this: this was illegal on many different grounds, but no likelihood of prosecution “because the president and DOJ concluded it was legal.” That is what he said, didn’t he?

The investigative report in The Washington Independent says that the chain of events leading from Rice’s panel to the CIA’s use of the methods is not known and, regardless of the likelihood that Bush will never face charges, “knowing that is essential.” Caroline Fredrickson, director of the Washington legislative office of the ACLU concurs:

"He has his fingerprints on torture, but did he grip the whole thing? The real question is, what level of decision-making was the president involved in?"

Other legal scholars do not see it the same way. Douglas Kmiec, a conservative law professor at Pepperdine University, contends that the statutes in question are too vague, and the facts of the matter too obscure, to congeal into an actual case against the president.

"The whole difficulty in this area is the level of generality that exists in the international agreements that the U.S. has participated in and the manner in which those were ratified by the United States -- obviously, particularly with the Convention Against Torture, but where the slippage is, in terms of legal analysis, comes with what those words mean in terms of domestic law. If I've understood matters correctly, we've tried to understand [the convention] in terms of our own Bill of Rights and the 'shock-the-conscience' standard -- which is a standard that's far from self-evident."

It seems clear from Bush’s admission that he will not bring charges against anyone in his administration, which raises another question. Huq says,

"No one in the executive branch is free of the taint of involvement with the 2002 interrogations. Tthe whole idea of the executive branch immunizing itself becomes much more worrying than in other cases. It's really the right hand absolving the left hand of what's been done."

Fredrickson proposes a commission modeled after the Church and Pike inquires of the 1970s that “revealed massive and systemic illegality within the intelligence services.”

"It's a great model because it was really the mechanism for bringing lot of illegality -- not just by the Nixon administration but prior administrations -- to light. That might be more appropriate, to use a wider lens, because panorama of illegality is quite broad."

Kmiec said he could conditionally support such a commission, provided it didn't degenerate into a partisan witch-hunt.

"If the commission would advance the understanding of the U.S. as to its obligations, and demonstrate to the world our seriousness of purpose, then it's a good idea. If the purpose of the commission is just a surrogate way of establishing a special-counsel investigation into the actions of the sitting president and vice president, then I think it is likely to degenerate into partisan bickering and not accomplish very much. Much would depend on the objective of the commission and its composition."

After all of the discussion of legal options, the report concludes with its assessment that the likelihood of retributive measures against the Bush administration for torture remains remote.

Huq observed that the "political appetite for that is nil," since "an excessive of zeal for prosecuting national-security activities, historically, hasn't happened."

Huq’s hope is for legislation requiring the videotaping of all terrorism interrogations. A measure introduced by Rep. Rush Holt (D-NJ) has been introduced, but has no schedule for a mark-up.

Kmiec said that the ultimate arbitration of the torture debate will occur at the polls.

"The way our constitutional system envisions accountability on questions such as this is accountability through electoral choice," he said. The president made his choice. The people will now make theirs."

Last Wednesday, Attytood of The Huffington Post reported on an interview that day with Obama. He asked him whether or not an Obama Justice Department "would aggressively go after and investigate whether crimes have been committed."

Here's his answer, in its entirety:

"What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.

So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important—one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it."

I believe that an Obama Attorney General will review the inquiries that need to be pursued. The next step will be the most difficult: deciding whether or not to bring criminal charges against a retired president and members of his administration. Concern that his first term not be consumed by this issue is legitimate because of other important problems to solve; but it is basically the same reason Pelosi took impeachment off the table.

If Fredrickson’s proposed investigative commission, Huq’s advocacy for legislation on videotaping, and Kmiec’s electoral choice are our only real options, then I certainly opt for all three. While each is called for, I think that none of them, or promises by Obama, Clinton or McCain that such practices will not be tolerated on their watches, will send a sufficiently clear statement to the nation and the world that we are serious about changing this broad “panorama of illegality.” A decision made in a court of law after a fair review of the evidence and a judgment requiring real world consequences is, however imperfect, the American way of meting out justice. Will the absence of such a decision make it harder for the nation to restore its crumbling Constitution?

- Milo