Published on Saturday, September 23, 2006 by the Chicago Sun-Times
Bush Seeks Immunity for Violating War Crimes Act
by Elizabeth Holtzman
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.calnurses.org
Join California Nurses and the
Campaign Against Corruption
When: Tuesday, September 26
11:00 am Picket
12:00 pm Rally
Where: Outside Gov. Schwarzenegger Conference on Women
Long Beach Convention Center
300 East Ocean Blvd, Long Beach
Working Women Speak-Out:
We are the Real Minervas
The working women of California--who struggle everyday to earn a
living in the face of rising health care costs, stagnant wages, skyrocketing
housing prices, and inadequate schools for their kids--are the real heroes.
We will honor housekeepers, bedside registered nurses, waitresses,
health care workers, clerical staff, factory workers, and all working women
who are the true California heroes.
Governor Schwarzenegger needs to honor working women with real awards:
universal health care that covers everyone and controls costs, a political
system that addresses the needs of people rather than gives favors to
special interest donors, more resources for education and more jobs that pay
a living wage, and an increase in the number of ordinary California women
who serve in elected office.
This agenda for working women needs action, not fancy conferences.
Let's start by passing Proposition 89 to get special interest money out of
politics--and more women into politics!
****
BACKGROUND on Governor's Conference on Women and Children:
The past two conferences have been overshadowed by nurses and public
employees protesting Schwarzenegger's measures on the special election
ballot and controversial statements he made after taking office.
Gov. Arnold Schwarzenegger, speaking in 2004 to open the annual
conference celebrating women's contributions to the state, dismissed
California nurses who protested his health care policies as "special
interests'' who are mad because "I kick their butt."
###
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