Obama priorities: Round two

Not a bad start. In one week, Barack Obama has signed executive orders that are calculated, at long last, to ban torture by the U.S. government, close Guantanamo, and shut down the CIA's secret "black site" prisons around the world. Eric Holder, his nominee for Attorney General, has declared waterboarding to be torture, opening the way to possible (but unlikely) prosecutions of those officials in the Bush administration who authorized or approved its use.

Obama has also acted quickly on environmental issues. As of today, California will be allowed to develop more aggressive pollution-control standards for cars. He has also rescinded the Bush administration's notorious gag order on discussing abortion at overseas birth-control clinics that receive funding from the U.S. government. By freezing a Bush delisting order, Obama has restored the protection of wolves under the Endangered Species Act.

To pursue his economic program, Obama will descend into the ninth circle of political hell by meeting with congressional Republicans tomorrow. Good luck with that, as the Democrats are reduced to courting Maine's two Senators to get the 60 votes they need to stop a filibuster.

So the agenda has moved along nicely in just 168 hours. (Still, you've got to wonder: will the Democrat's economic rescue package go down the tubes in the name of "bipartisanship?")

Now I doubt that the following list would be totally overlooked by the Obama administration, but these are four items also deserve high priority in any effort to reintegrate the U.S. into the global legal framework.

1. Join the International Criminal Court (ICC) in The Hague

The ICC has recruited 108 member nations since it was founded in 2002. The membership includes nearly all countries in western Europe and South America, Japan, Canada, Mexico and Australia. Bill Clinton signed the treaty at the end of his second term, but George W. Bush "ordered the signature withdrawn." By joining the ICC, the U.S. would send a strong message that it has again embraced the rule of law after an eight-year lapse. The Obama administration and current ICC members should strongly encourage China, India and Russia to join.

2. Sign the treaty banning antipersonnel mines

The treaty is formally known as the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction -- or more briefly, the Ottawa Treaty. The treaty was adopted following a vigorous campaign by Jody Williams, a U.S. citizen, that won the early support of the Canadian government. Williams was awarded the Nobel Peace Prize for her efforts. There are 155 signatories to the treaty, including the ones mentioned above. But not the U.S., which claims that the heavily-mined DMZ in Korea should be exempted from its provisions. Meanwhile, South Korea, the supposed beneficiary of U.S. protection, states that it has produced no antipersonnel mines since 2000. Like the U.S., most current manufacturers of antipersonnel mines have refused to sign the Ottawa treaty.

3. Sign the convention banning cluster bombs

After the Convention on Cluster Munitions was approved in Dublin in May of 2008, it was quickly accepted by 107 nations. Last month, 97 of those nations went on to formally endorse the Convention in Oslo. The usual suspects have refused to participate, including the U.S., China, Russia, India and others who either manufacture cluster bombs or have large stockpiles. Unexploded cluster bombs can remain hazardous to civilians for many years.

4. Ratify the Kyoto Protocol on climate change and its successor

The Kyoto agreement is, technically speaking, a Protocol to the U.N Framework Convention on Climate Change (UNFCCC). While the U.S. is a signatory to the Protocol, it has never been ratified by the necessary two-thirds of the Senate. That leaves the U.S. among a handful of countries that have defied international opinion and the overwhelming weight of empirical data on climate change. On their own initiative, an impressive number of U.S. states and cities have adopted many of the Protocol's goals. Over the next couple years, the UNFCCC will be developing a successor to the Kyoto Protocol that will likely include a "cap and trade" system for carbon emissions. While ratification of the Kyoto Protocol might be of little practical importance at this late date, the Obama administration could make up for lost time by playing a major role in developing the next set of goals for stabilizing the climate.

These four steps would require the approval of the U.S. Senate, and therefore the recruitment of a single Republican to overcome a filibuster, not to mention other obstructionist tactics that could (and will) be used. But it's not too early to start the process of gaining approval for these essential treaties.


TOP PHOTO: Barack Obama poses with one of his peers. (Wikimedia)

MIDDLE PHOTO: A U.S. M18A1 claymore antipersonnel mine, ready for deployment. (Wikimedia)

BOTTOM PHOTO: A USAF B-1 bomber dropping 30 CBU's (cluster bombs) (Wikimedia)

Inaugural quartet: " Air and Simple Gifts," by John Williams

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A powerful performance from today's inauguration by Yo-Yo Ma, Itzhak Perlman, Gabriela Montero and Anthony McGill. The piece incorporates themes from Appalachian Spring by Aaron Copland, one of President Obama's favorite composers.

Inaugural poem: Elizabeth Alexander

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Praise song for the day.

Each day we go about our business, walking past each other, catching each others' eyes or not, about to speak or speaking. All about us is noise. All about us is noise and bramble, thorn and din, each one of our ancestors on our tongues. Someone is stitching up a hem, darning a hole in a uniform, patching a tire, repairing the things in need of repair.

Someone is trying to make music somewhere with a pair of wooden spoons on an oil drum with cello, boom box, harmonica, voice.

A woman and her son wait for the bus.

A farmer considers the changing sky; A teacher says, "Take out your pencils. Begin."

We encounter each other in words, words spiny or smooth, whispered or declaimed; words to consider, reconsider.

We cross dirt roads and highways that mark the will of someone and then others who said, "I need to see what's on the other side; I know there's something better down the road."

We need to find a place where we are safe; We walk into that which we cannot yet see.

Say it plain, that many have died for this day. Sing the names of the dead who brought us here, who laid the train tracks, raised the bridges, picked the cotton and the lettuce, built brick by brick the glittering edifices they would then keep clean and work inside of.

Praise song for struggle; praise song for the day. Praise song for every hand-lettered sign; The figuring it out at kitchen tables.

Some live by "Love thy neighbor as thy self."

Others by first do no harm, or take no more than you need.

What if the mightiest word is love, love beyond marital, filial, national. Love that casts a widening pool of light. Love with no need to preempt grievance.

In today's sharp sparkle, this winter air, anything can be made, any sentence begun.

On the brink, on the brim, on the cusp -- praise song for walking forward in that light.

[The transcript of the inaugural poem recited by Elizabeth Alexander, as
provided to the New York Times by CQ transcriptions (January 20, 2009).]

UPDATE: The Bush challenge

The White House announced today that George W. Bush will not be granting any additional pardons or commutations during the final hours of his presidency. Apparently he has selected Option II of the legal endgame outlined in his counsel's memo, as quoted here on January 17th:

"Grant no pardons, and obtain none yourself, thereby taking the risk that you and other administration officials may be prosecuted for federal crimes allegedly committed during your two terms.

"This 'in-your-face' option will dare the new administration and its Department of Justice to initiate "partisan" and "divisive" prosecutions that, as President-elect Obama has already made clear, he would be very reluctant to pursue."

So, legally speaking, the way is clear for the Obama administration or Congress to call Bush's bluff. To help get things started, here's my partial list of the crimes for which various Bush officials, and Bush himself, must be indicted and prosecuted:

1. Crimes against peace, including waging a war of aggression, in clear violation of the Nuremberg Principles (see below);
2. Conspiracy to torture and abuse prisoners and detainees at Guantanamo, Abu Ghraib, Bagram airbase in Kabul and various CIA "black sites" around the world;
3. Extraordinary rendition of detainees to countries where administration officials knew, or should have known, that they would be tortured;
4. Illegal wiretaps and other unlawful electronic surveillance of U.S. citizens and others in violation of the 4th Amendment;
5. Etc., etc.

In a further effort to jumpstart the process, which seems to be stalled at the moment, let me specify the relevant provisions of the Nuremberg Principles:

Principle VI: The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

(b) War crimes:
Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

(c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.

Principle VII: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

The relevant federal laws, including laws related to torture, have already been addressed in previous entries.

So where to begin?

Not with Barack Obama, who has offered the following high opinion of George Bush as a person:

“If you look at my statements throughout the campaign, I always thought he was a good guy,” the Democratic president-elect said on CNN about the Republican president whom he replaces Tuesday.

“I mean, I think personally he is a good man who loves his family and loves his country. And I think he made the best decisions that he could at times under some very difficult circumstances.”

It seems unlikely that Obama would agitate for the prosecution of a "good guy" who made "the best decisions that he could." Obama has also stated:

"I don't believe that anybody is above the law," Obama said in a recent television interview. "On the other hand, I also have a belief that we need to look forward, as opposed to looking backwards."

Obama, a former professor of constitutional law, should know that acting in "good faith" is not a defense to a torture charge.

So that leaves Congress, which on its own could start moving toward the appointment a special prosecutor. Despite the list of war crimes that should be given the highest priority for investigation and prosecution, Nancy Pelosi has a much narrower focus:

...Pelosi said she wants an investigation into whether the Bush administration broke the law when it fired a group of federal prosecutors. [My emphasis.]

"I think that we have to learn from the past, and we cannot let the politicizing of, for example, the Justice Department, go unreviewed," she said. "Past is prologue."

That's it? Considering the gravity of the administration's other offenses, the illegal firing of prosecutors should appear somewhere near the bottom of a very long indictment.

But maybe there's a small glimmer of hope:

House Democrats last week recommended a criminal investigation to determine whether administration officials broke the law in the name of national security. Along with the fired prosecutors, the report cited interrogation of foreign detainees, warrantless wiretaps, retribution against critics and manipulation of intelligence.

Prosecutors ordinarily have a great deal of discretion in determining whom to prosecute, and for what crimes. But Hilzoy of Obsidian Wings and Glenn Greenwald of Salon, among others, argue that crimes like torture are so horrific that prosecution is mandatory under federal and international law. As Hilzoy (Hilary Bok), a law professor at Johns Hopkins, writes:

It seems to me that these facts imply that if Barack Obama, or his administration, believe that there are reasonable grounds to believe that members of the Bush administration have committed torture, then they are legally obligated to investigate; and that if that investigation shows that acts of torture were committed, to submit those cases for prosecution, if the officials who committed or sanctioned those acts are found on US territory. If they are on the territory of some other party to the Convention, then it has that obligation. Under the Convention, as I read it, this is not discretionary. And under the Constitution, obeying the laws, which include treaties, is not discretionary either.

In declining to pardon Cheney, Rumsfeld, Addington and the rest of the cabal, Bush has demonstrated his total confidence that he and his colleages will never be held accountable for their actions. In fact, Bush has only been held to account personally on one occasion: when an Iraqi journalist tossed shoes at him in a Baghdad press conference. (An act that is being repeated, as I write this, by protesters outside the White House.)

Bottom line: Bush walks, as do his co-conspirators.

Amidst all the appropriate jubilation surrounding tomorrow's inauguration, there's every reason to be depressed about the fading commitment of the United States government to the rule of law.

[NOTE: I write this as an enthusiastic supporter of Obama who voted for him and made a small contribution to his campaign. But he and most other Democrats have been seriously wrong on this issue.]

PHOTOS: Scenes from a huge antiwar demonstration (35,000 people) in Portland, Oregon, on March 19, 2006 (M.J. O'Brien).

EXCLUSIVE: Pardon me, quick...

In a Runes exclusive, a confidential informant has provided us with a copy of a "highly confidential" memorandum to George W. Bush from his personal attorney in the Office of White House Counsel. After reviewing the background of the presidential pardon power, the author presents two options for the administration's legal endgame:

MEMORANDUM OF LAW

January 16, 2009

TO: President George W. Bush
FROM: Wetherby P. Thwaitebottom III
RE: Presidential Pardons

In response to your inquiry during our telephone conversation of January 15th, my research indicates the following:

1. There appear to be no limits of the president's power to pardon under Article II, Section 2, of the Constitution, which provides that the president "shall have power to grant reprieves and pardons for offenses against the United States." As Alexander Hamilton wrote in the Federalist No. 74:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.

...one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

2. The pardon power applies to all crimes, from actual convictions to cases where no indictment has yet been issued. It does not apply to future crimes, nor does it preclude impeachment.

3. Pardons have been routinely granted since George Washington, on his last day in office, pardoned the leaders of the Whiskey Rebellion of 1794. Other examples include: Gerald Ford's pardon of Richard Nixon in 1974; George H.W. Bush's pardon of 75 people, including Reagan officials who were involved in the Iran-Contra scandal; Bill Clinton's controversial pardon of billionaire Marc Rich and others at the end of his term; and George W. Bush's award of clemency to Scooter Libby.

4. The pardon power applies only to "offenses against the United States" — that is, for crimes defined by federal, and not state, law. By implication, individual states can try and convict, under their own laws, those who are immune from prosecution for federal crimes. Under various state constitutions, governors also have the power to pardon and grant clemency.

Based on the above, I recommend that you consider the following options to insulate yourself and other administration officials from potential liability for war-crimes and other prosecutions after your term ends on January 20th:

OPTION I:

1. At 11:30 p.m. on January 19th, you should grant blanket pardons to all administration officials who may be subject to prosecution, including: Dick Cheney, Donald Rumsfeld, David Addington, Alberto Gonzales, Jay Bybee, John Yoo and anyone else who has been, or may be, implicated.

2. At 11:35 p.m. on January 19th, you should submit your resignation from the presidency, effective immediately.

3. At 11:40 p.m. on January 19th, Dick Cheney should be sworn in as the 44th president of the United States; and,

4. At 11:45 p.m. on January 19th, President Cheney should sign an order pardoning you for any and all crimes that you may have committed during your two terms of office.

While this is legally the most cautious strategy for protecting yourself and your colleagues, there are obvious political and historical risks involved that you are quite capable of assessing. Most notably, wholesale pardons of yourself and others would be widely viewed as an admission of guilt — a concession you may not want to make to your political enemies. Moreover, a self-pardon might be construed as a form of legal masturbation.

Alternately, you could pardon everyone but yourself and assume that the next Attorney General would not be brazen enough to prosecute a former president.

OPTION II:

Grant no pardons, and obtain none yourself, thereby taking the risk that you and other administration officials may be prosecuted for federal crimes allegedly committed during your two terms.

This "in-your-face" option will dare the new administration and its Department of Justice to initiate "partisan" and "divisive" prosecutions that, as President-elect Obama has already made clear, he would be very reluctant to pursue.

Based on the above analysis, I respectfully recommend that you implement Option II.

Will George W. Bush follow these recommendations? We'll find out over the next 72 hours.

NOTES: Our untold thousands of regular readers will recall that the war-crimes question has been a regular topic on Runes. See, for example, here, here, here and here. Always ahead of the curve...

PHOTO: Soulmates — George W. Bush pardons a turkey during the annual ritual, Thanksgiving 2007 (Wikimedia).

Legacy: desecrating the falls

Finally, after years of obstructionism by a single senator (Tom Coburn, R-Okla.), Congress has passed a comprehensive national bill that in Oregon alone will add five new wilderness areas and greatly expand existing areas, including those on Mt. Hood and in the Columbia River Gorge. Even with this bill, the total protected acreage in Oregon is significantly less than in its neighboring states:

Oregon 3.7% in protected wilderness
California 14.0
Washington 11.0
Idaho 7.5

So there's still a lot that remains to be done in Oregon. For example, this state has only one national park (Crater Lake), compared to Washington State's three. Amazingly, not a single national park has been created along Oregon's spectacular coast. While clearcutting has been ravaging privately-owned timberlands across western Oregon in recent years, the BLM has developed, and begun to implement, plans for a massive assault on the state's remaining old-growth forests within its jurisdiction.

In Oregon more than elsewhere on the west coast, there seems to be a lingering premise that forests should be open to clearcutting unless opponents satisfy a heavy burden of proof to the contrary. This premise has a long history. (See here, here, here and here.)

For sixty years, the Angelus Studio in Portland, Oregon, compiled an "extraordinary documentation of the city of Portland, the Lewis & Clark Exposition of 1905, Oregon landmarks, and commercial operations including logging and fish packing." In about 1925, by my estimate, Angelus compiled many photographs of the Columbia River Gorge for the now-defunct Spokane, Portland & Seattle Railway. The one below shows Multnomah Falls, the second-highest waterfall in the continental U.S., not too long after the slopes above it had been clearcut:

In fairness, the land above Multnomah Creek was likely owned by timber baron Simon Benson at the time it was logged. It later became part of the Mt. Hood National Forest.

The existing second- or third-growth forest of even-aged trees above the falls is quite healthy despite modern fires that endangered the historic Multnomah Fall Lodge. The trail to the top of the falls is mobbed year-round, but it's easy to find solitude on the upper trail that leads to the top of Larch Mountain. It's unimaginable that clearcutters could've stripped these steep mountainsides of their trees with impunity, even a century ago.

This legacy may no longer be visible on the slopes above Multnomah Falls, but it lingers in the relationship that many Oregonians still have to their landscape. The central contradiction of land-use planning and development still exists: you can degrade the landscape with clearcutting and urban sprawl but, somehow, still attract the large numbers of tourists needed to nourish local economies. Where the vaunted Urban Growth Boundaries have been established, their effectiveness is undermined by two realities: 1) they can be, and have routinely been, expanded; and, 2) urban sprawl is barely regulated within those boundaries.

A place like Switzerland, of course, is far more dependent on tourism than Oregon. It functions on the opposite premise that a heavy burden must fall on any proponent of altering the pristine alpine landscapes. On my many visits to that country, I've never seen a single clearcut (although mechanized tourism, with its cable cars and skilift towers, has produced blemishes of its own).

The rough Swiss equivalent of Multnomah Falls might be the Staubbach Falls (above) in the Bernese Alps, which at 1,000 feet is twice the height of Oregon's highest waterfall. I seriously doubt that it ever occurred to any Swiss to clearcut the lush conifer forests above the Staubbach.

Logging in the Alps is strictly limited, and clearcutting is forbidden. When logging is done at all, tight restrictions are imposed: for example, horses might be used instead of machinery, and soil compaction can be avoided by removing cut trees in the spring, when the snowpack is still deep.

But I don't think this is merely an economic calculation: the Swiss have a different relationship to the land they've occupied for millennia. It's recognized to be a finite and precious resource, a realization that has been late in coming to Oregon and the rest of the U.S. The latest wilderness bill is an incremental step in the right direction.

Blues Break: Ukulele Orchestra of Great Britain - "Shaft"

The Orchestra performs the theme from Shaft at the Cambridge Folk Festival.

Wishing you peace and happiness in the New Year.

[With a H/T to Obsidian Wings]