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).

The curious case of Georgia Thompson

Last November— coincidentally, no doubt, just before the election—state purchasing agent Georgia Thompson was sentenced to eighteen months in a Wisconsin federal prison after being convicted of official corruption: namely, steering a lucrative government contract to a company that donated $20,000 to Democratic Governor Jim Doyle for his hard-fought campaign for re-election. The trial judge refused to release Thompson from prison while her appeal to the 7th Circuit U.S. Court of Appeals in Chicago was pending.

In their attack ads, Republicans relied heavily on the fresh Thompson conviction as proof of Doyle's corrupt administration. Nonetheless, Doyle won the election with 53% of the vote.

So far this sounds like a routine white-collar prosecution with a political twist, but on further examination the facts get more interesting:

• The competing bids were close (a "statistical tie"), but Thompson's final decision favored a Wisconsin firm over one that was out-of-state.

• Georgia Thompson was appointed to her position in 2001 by a Republican, and she was sentenced by a Republican appointee to the federal bench.
  

• The U.S. Attorney (USA) in Milwaukee, Steven Biskupic (a Dubya appointee), survived the Justice Department's purge of eight USA's who were deemed insufficiently partisan in their prosecutions of official corruption and "voter fraud" (1) by Alberto Gonzales and Karl Rove (as described previously here and here, and all over the net).
  


• Most critically, legally speaking, there was no evidence at trial that Thompson had any knowledge whatsoever of the campaign contribution to Doyle that allegedly motivated her decision.
  

Thompson's conviction demolished her reputation, led to the loss of her job and cost her at least $300,000, mostly in legal fees and lost salary (2).

Faced with the trial record, a three-judge panel (including one Democratic and two Republican appointees) of the 7th Circuit held last week that "no reasonable jury" could have convicted Thompson on the evidence presented. One of the judges told the Assistant USA at the hearing that “it strikes me that your evidence is beyond thin." The written order of the court in Case No. 06-3676 was terse and direct:

"The judgment of conviction is reversed, and the case will be remanded with instructions to enter a judgment of acquittal... Thompson is entitled to immediate release from prison, on her own recognizance. The United States must make arrangements so that she may be released before the close of business today."

It is unclear whether the government will appeal to the full panel of the 7th Circuit.

Appellate courts usually remand cases back to the trial court for further proceedings; they rarely acquit defendants on the spot and order their instant release from prison (after just 26 minutes of oral argument). This extraordinary result came "with a swift, blunt decisiveness almost never seen in the legal system," and "struck a blow to the credibility" of Biskupic and his office.

A Democratic state senator said:

"I think it's right out of the Karl Rove playbook... I never thought I'd see a prosecution like this. That woman is innocent. He's ruined her life."

As Congress investigates the purge of the eight USA's, the prosecution of Thompson presents a larger question: (as noted in a NY Times editorial): "what did the surviving attorneys do to escape the axe?" Is it just a coincidence that only 17.8% of federal prosecutions for official corruption have been directed against Republicans by Bush's Justice Department?

Ordinarily the motivation to prosecute isn't legally relevant if the evidence shows that a crime may have been committed. But the evidence suggests that Thompson may have been "railroaded" based on scant proof of guilt. How many other convictions in federal court are vulnerable to attack because of partisan motives? And how many federal prosecutions were actually blocked for partisan reasons? The scandal in the Justice Department will be playing itself out for the remainder of Bush's interminable presidency.

NOTES

(1) Sure enough, Biskupic led a "joint inquiry" into voter fraud last year that found:

...clear evidence of fraud in the Nov. 2 election in Milwaukee, including more than 200 cases of felons voting illegally and more than 100 people who voted twice, used fake names or false addresses or voted in the name of a dead person.

But even with a reported discrepancy totaling 4,609 in the Milwaukee voter rolls, none of the alleged fraud occurred on a scale that would have affected the statewide election results for governor or president.

Biskupic seems to have a reputation for impartiality, but it remains to be seen whether he was unaffected by the political storms within the Bush/Rove Justice Department.

(2) Gov. Doyle didn't help Thompson's cause by stridently dissociating himself from her after her conviction, saying that he had "zero tolerance for ethical lapses in government." Now he proclaims that she was "a political football" and "an innocent woman who was imprisoned for more than four months just for doing her job." [This analysis has been disputed—see comment below.]

NOTE: A high-quality audio version of the oral argument is online at the 7th Circuit's site. It's easy to see where the court is headed as it takes the case under the briefest "advisement" before issuing its order.

PHOTO: Biskupic speaking at the Federalist Society, the source of many right-wing appointments to the federal bench (including Justices Scalia and Thomas) and prominent conservative attorneys like Kenneth Starr. The NY Times notes that:

...much of the [Society's] influence, and most of the intrigue, flows from an informal social network, which members use to advance one another's causes and careers. Openly and behind the scenes, members have played prominent roles in the most pitched political battles in recent years, including the impeachment of President Bill Clinton and the Florida recount fracas in 2000 that led to the election of Mr. Bush.