by Elizabeth Holtzman
September 23, 2006

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.

When the Supreme Court recently decided that the Conventions did apply to al-Qaida and Taliban detainees, the possibility of criminal liability for high-level administration officials reared its ugly head again.

What to do? The administration has apparently decided to secure immunity from prosecution through legislation. Under cover of the controversy involving the military tribunals and whether they could use hearsay or coerced evidence, the administration is trying to pardon itself, hoping that no one will notice. The urgent timetable has to do more than anything with the possibility that the next Congress may be controlled by Democrats, who will not permit such a provision to be adopted.

Creating immunity retroactively for violating the law sets a terrible precedent. The president takes an oath of office to uphold the Constitution; that document requires him to obey the laws, not violate them. A president who knowingly and deliberately violates U.S. criminal laws should not be able to use stealth tactics to immunize himself from liability, and Congress should not go along.

Elizabeth Holtzman, a former New York congresswoman, is co-author with Cynthia L. Cooper of The Impeachment of George W. Bush: A Practical Guide for Concerned Citizens

http://www.commondreams.org/views06/0923-22.htm
How George Bush Admitted His War Crimes

by Richard W. Behan
September 30, 2006

It was brilliantly deceptive, trumping even his orchestrated dishonesty in leading us to war.

Buried in the 94 pages of the Military Commissions Act of 2006-the "detainee act" or the "torture bill"-the Bush Administration tacitly admits it has committed war crimes.

There is no question war crimes have been committed. Corporal Charles Graner, Private First Class Lyndie England, and several of their teammates are serving time, for mistreating prisoners at the Abu Ghraib prison in Baghdad.

At the time these soldiers were tried and sentenced many people felt the culpability must extend above the ranks of enlisted personnel, up some distance into the chain-of-command, perhaps to the top. Many still do.

There are two pairs of dots to be connected. One is a pair of small dots, the other two are huge.

On December 28, 2001, a memo to President Bush from his Office of Legal Counsel made two claims: the US court system had no jurisdiction regarding the detainees at Guantanamo, and the Geneva Conventions did not apply to them.

Acting on this advice, on February 7, 2002 President Bush suspended Common Article 3 of those conventions-which, among other things, prohibits torture. Two years later, thanks to CBS' 60 Minutes and the New Yorker magazine, the prisoner abuses at Abu Ghraib came to light. Connect those dots. These are the small ones.

Subsequent lawsuits addressing the detainee issue were considered and resolved by the Supreme Court. Rasul v. Bush found the US courts did have jurisdiction over the detainees. Hamdi v. Rumsfeld said detainees have a right to contest their detention: they are entitled to habeas corpus protections. Hamdan v. Rumsfeld tested the military tribunals President Bush created to bring the detainees to justice. The Supreme Court found the tribunals in violation of Common Article 3 of the Geneva Conventions, and their existence to be illegal, absent a basis in federal statute. The decision was handed down June 29, 2006.

Hamdan v. Rumsfeld put on display the Bush Administration's guilt in committing war crimes. This is one of the huge dots. It will be connected to another one shortly.

The Bush Administration wasted no time drafting a law to legalize the military "commissions," as they came to be called. Senators McCain, Warner, and Graham initially and vigorously opposed it-and then caved in.

A "compromise" was worked out in Vice President Cheney's office. Trivial tweaks.

The law signed by the President precludes federal courts from any jurisdiction whatsoever, in direct contradiction to the Supreme Court's finding. It denies habeas corpus protections, also in direct contradiction.

And it prohibits explicitly the detainees from claiming rights under the Geneva Conventions. Here is the language that does so:

No person may invoke the Geneva Conventions, or any protocols thereto, in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Services, or other agent of the United States, is a party, as a source of rights in any court of the United States or its States or territories.

This means that no detainee can bring suit for any violation of the Geneva Conventions, and this is the other huge dot. The Bush Administration already stands accused by the Supreme Court of violating Common Article 3, but the Administration wrote a law, and bulldozed it through a compliant Congress, to render prosecution impossible.

This also means the US simply is not bound by the Geneva Conventions. If detainees cannot claim rights under them the Conventions are moot.

The Military Commissions Act of 2006 is retroactive. It shall ".take effect as of November 26, 1997, as if enacted.[on that date]." Nothing the Bush Administration has done can be called into question.

Why would the Bush people write these several requirements into a law? Only if they are guilty of committing war crimes and know they will face prosecution. Though ingeniously obscured, this is a de facto admission of guilt.

The Military Commissions Act of 2006 is mostly smokescreen. The law's primary purpose is to immunize the Bush Administration, which explains the Administration's frantic anxiety to have it passed. The thrust of the bill, relating to detainee trials, is hardly a matter of top priority: the detainees have been languishing for years. Elizabeth Holtzman saw through the smokescreen in a recent essay in the Chicago Sun-Times, "Bush Seeks Immunity for Violating War Crimes Act." Not many other commentators have noticed.

This new law shields the Bush Administration from their mistreatment of prisoners, but that issue is truly a marginal one. Still to be confronted is the illegality of the Iraq war writ large: sold to the American people on conscious lies and prosecuted at horrific expense in human lives and treasure. Crimes against humanity are involved here.

The Military Commissions Act was created by desperate people terrified of prosecution. Imagine George W. Bush taking the stand in The Hague, following in the footsteps of Slobodan Milosevic. Imagine Richard Cheney, Donald Rumsfeld, and Condoleezza Rice imprisoned. Imagine.

Richard W. Behan's last book was Plundered Promise: Capitalism, Politics, and the Fate of the Federal Lands (Island Press, 2001). He is currently working on a more broadly rendered critique, To Provide Against Invasions: Corporate Dominion and America's Derelict Democracy. He can be reached by email at rwbehan@rockisland.com

http://www.commondreams.org/views06/0930-22.htm