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).

Geaghan: Saturday snippets

A rainy day here in northwestern Oregon has encouraged me to cancel a camping trip. So I've consoled myself with an extended tour of my bloglist. A few topics du jour:

Leapfrogging into absurdity

Matthew Yglesias writes:

The primary leapfrogging sweepstakes seems to have really taken off now that Michigan's moving to January 15. This means that if New Hampshire and Iowa try to maintain the usual spacing, Iowa's going to wind up in 2007. One can only hope this means the Iowa-Newhampshire-ification of American politics has reached some kind of a breaking point and we won't stick with this farcical nominating process in 2012.

Right now the parties effectively control the nominating process, which has produced the growing absurdity of balkanized campaigns that begin in mid-term.

Other countries manage to regulate campaigns more effectively. In (gasp!) France, for example, there's a cap on total spending (€20 million) and matching public financing of 50% for candidates with more than 5% of the vote. Minor parties, whose candidates received less than 5%, get €800,000 (with €150,000 paid in advance). TV advertising is prohibited, but public TV sets aside ample time for candidates to use. An independent agency supervises elections and public financing. A runoff election takes place if no candidate receives more than 50% of the vote.

Such a rational system of regulating elections would be difficult to import into our chaotic process, but it could produce a better overall result—and end the competition for undue influence by individual states in the nominating process.

Escape Hatch for Rove

Digby at Hullabaloo speculates that Karl Rove's resignation may suggest rapid progress in a Hatch Act investigation that began with a complaint filed against Rove by fired U.S. Attorney David Iglesias in April. She writes:

These Hatch act investigations may end up being more potent than anybody realizes. Remember, Watergate started out as a third rate burglary.

The Office of Special Counsel website describes the meager penalties for violations of the Hatch Act, which would seem to have no application to a federal employee who has already resigned from the government:

An employee who violates the Hatch Act shall be removed from their position, and funds appropriated for the position from which removed thereafter may not be used to pay the employee or individual. However, if the Merit Systems Protection Board finds by unanimous vote that the violation does not warrant removal, a penalty of not less than 30 days' suspension without pay shall be imposed by direction of the Board.

Of course an investigation of Iglesias' allegations could conceivably turn up something more damaging to Rove than Hatch Act violations. The OSC site also points out that "certain political activities may also be criminal offenses under title 18 of the U.S. Code..."

But I don't see any basis to conclude that the OSC even has jurisdiction to investigate former employees under the Hatch Act. So the Iglesias complaint has been rendered moot. Any offenses under title 18 would probably have to be investigated by a grand jury, and none has yet been convened for that purpose.

Even if Congress amends the Hatch Act (as some have suggested) to stiffen the penalties and/or make violations a criminal offense, Rove still walks. A revised Hatch Act couldn't apply retroactively, since Article I, Section 9, of the Constitution prohibits ex post facto laws.

Then there's the small matter of a presidential pardon, which will be instantly available on request.

The Flat Brain Society

Discredited "Middle East expert" Thomas L. Friedman was back on "Charlie Rose" on Thursday, peddling the paperback version of The World is Flat. Now that Friedman's credibility on Iraq has been reduced down near absolute zero, he's shamelessly repositioning himself as an expert on globalization and the vast corporate profits to be had through environmental awareness. But he puts me in such a rage that I couldn't watch more than the first minute.

Atrios provides a link to a Rose interview with Friedman on May 3, 2003—after five weeks of war in Iraq—in which his guest spouts such gems as:

I think it [the invasion of Iraq] was unquestionably worth doing, Charlie.
...
We needed to go over there, basically, um, and um, uh, take out a very big state right in the heart of that world and burst that bubble, and there was only one way to do it.
...
What they needed to see was American boys and girls going house to house, from Basra to Baghdad, um and basically saying, "Which part of this sentence don't you understand?"

You don't think, you know, we care about our open society, you think this bubble fantasy, we're just gonna to let it grow?

Well, Suck. On. This.

Okay.

That Charlie was what this war was about. We could've hit Saudi Arabia, it was part of that bubble. We coulda hit Pakistan. [1] We hit Iraq because we could.

A special niche in hell is reserved for guys like Friedman, who should be forced to spend eternity watching reruns of his many performances as one of the lead pimpmeisters for Bush/Cheney.

And the perfect roommates for Friedman? Christopher Hitchens [2] and Michael Ignatieff [3].

NOTES

[1] The very same Pakistan that has had nuclear weapons since 1998? It's interesting that a realpolitiker like Friedman believes that Pakistan would've politely kept its nukes on the shelf while Bush/Cheney proceeded to overthrow its government.

[2] Hitchens' new book (God Is Not Great: How Religion Poisons Everything), in which he aggressively defends his atheism, might be interpreted as an attempt to reassure himself that he'll never be held accountable for his support of the criminal conspiracy that led to the war in Iraq. He apparently sees no contradiction between his support for Bush/Cheney and the administration's assaults on the Establishment Clause of the U.S. Constitution.

[3] Ignatieff made an unconvincing attempt to repent for his role in pimping for the war, including his express support for torture, in a recent column in the The New York Times Magazine (sorry, but for once I refuse to provide a link—look it up if you want to read it). The Toronto Star simply notes in passing that Ignatieff "supported the Iraq war when it suited him and opposes it when it doesn't."

[Note: Portions of the above were cross-posted as comments on the blogs noted.]

PHOTO: IVotronic voting machine, one of many types used in 2007 French elections (Wikipedia Commons)