Some of you folks are just plain clueless as to how the law works (should work, etc.) I’d suggest law school, but that would compound the problem.
I’m not sure that’s 100% clear at this stage. The DTA immunity provision is designed to protect the President’s subordinates. It could reasonably be interpreted not to extend to the President himself, I would think. Is it a clear-cut matter that the President is an officer of the government?
Additionally, there are no doubt cases of torture that don’t fall under the exemption (those being tortured were not enemy combatants or terrorists or either). There are dozens of cases from Iraq, Afghanistan, and elsewhere of the mistreatment, torture, and murder of detainees. Some are more credible than others, but they are only now starting to face serious investigation and some of them are starting to hit US courts. I’ve personally read the FOIA documents from CID and NCIS investigations, and I can tell you this stuff has legs.
Under the command responsibility doctrine, commanders–including the commander-in-chief–can be held responsible for illegal acts they knew or had reason to know their subordinates were engaged in. No doubt, the vast majority of this stuff was not a matter of policy and was unknown to Bush. But some of it isn’t so clear. The FOIA documents of FBI reports indicate that some stuff that might constitute torture (waterboarding being the obvious example, but there are others) was indeed a matter of well-known routine practice, if not policy.
I am not saying any of this is a strong case against Bush by any means. On the contrary, it is a case that will almost certainly never be brought (at least against Bush, I wouldn’t rule out a Rumsfeld indictment just yet). But it is not the stuff of conspiracy theorists and loonies either.
Also worth noting that the statutory defense could be abolished. I don’t think it is outside the realm of possibility that with a Democrat in the white house we’ll see a revision of the DTA.
Exactly, crimes that are creatures of statute can be created as well as expunged. Scenario: Congress passes a clear and strongly worded act prescribing the penalities for criminal offences including misuse of the US intelligence services, failure to keep to the white house records requirements, breach of international treaty obligations and including a conspiracy to aid or abet such conduct; the MIRRTOC Act. An energetic and independent attorney general appoints special prosecutors forthwith with a special brief to investigate and apply the MIRRTOC Act. Ex-President Bush & Co are investigated.
Unlikely? Yes. This takes some imagination, but doesn’t take us right into fantasy.
Congress could pass a law restraining future administrations (or even the Bush Administration for the rest of Bush’s term), but the U.S. Constitution bars ex post facto laws, so the MIRRTOC Act could not be retroactively applied.
True.
MIRRTOC could be worded so as
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to clarify enduring and pre-existing prohibitions from c. 2001,
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and to skirt the ambit of the earlier exclupatory act, from the intervening period.
Since the comment in the OP and subsequent discussion refers to Bush getting indicted, I would say it’s clear that the discussion is about punishing Bush with the legal system. The idea that he may be attacked by some other, extra-legal method is fascinating, but outside the scope of this debate.
If further investigation develops additional facts, of course the picture may change. But at present, given the facts we may reasonably present to a grand jury NOW, there is no fair indictment of Bush to be had. (I recognize, of course, the ham sandwich exception).
I would wait to indict him in the US and allow for him to be tried in the Hague for his abuses of international law including torture, rendition and the whole Guantanamo mess (I haven’t read enough about them to know if the secret CIA camps violate international law).
After that doesn’t happen (which it won’t), we could then indict him for torture, violating civil rights of various terror suspects and violations of the Constitution (e.g., violating the FISA act and spying on citizens without warrants). Unfortunately for history, we won’t indict him, and I think it might be a good idea for us not to. After seven years of this crap, I just want to walk away from him and his policies as soon as he no longer has a national forum with which to preach his bizarre vision of reality. On the way home from work last night, I turned on the news station and heard his voice say, “Al Queda on the run in Iraq” and knew that nothing meaningful was going to be in his speech.
I think we missed a good opportunity to help the world and save lives by not impeaching him after the mid-term elections, because impeachment actually has a pretty low standard: high crimes and misdemeanors, however Congress wants to interpret the phrase. I mean, come on. He’s brought us down to the level where we have to have arguments about what exactly constitutes torture because we’re doing the torturing. Step back and think about it – the United States of America, my country, lawyered up to find loopholes to justify torturing people. He’s done a million little things that irritate the crap out of me, but I just can’t forgive him for dragging our national discourse down to that level. We are now exposed to the world as a place where the powers-that-be think there’s ambiguity regarding torture. I know I’ve just said the word ‘torture’ about a dozen times, but it’s really quite important to me, because just having to consider it taints the United States that I love; it changes us from a shining city on a hill into a bunch of amoral thugs, and that satisfies my definition of “high crimes and misdemeanors.”
IMO, part of Obama’s surge is because people just want to wipe the slate clean and get on with the task of fixing the mess we’re in.
Sorry, I don’t recall the OP asking anyone to outline the complete legal process that would result if Bush should get indicted- he asked for opinions if he would be. You know he theoretically could be because you also know there are no specific black and white rules that must be broken to indict someone in cases like this, so your attempt to use the above smokescreen to for some reason keep from admitting that based on his actions and the current law, it is indeed within the realm of possibility.
I assume your above questions were posed to show that you know more about law than I do, which is unnecessary- you, Bricker, know infinitely more about the law than I do- no one’s arguing that. Your credentials are not being disputed, no need to flaunt them here, especially when they aren’t necessary to provide a sensible response to the OP- a cursory review of the Wikipedia page on the subject is more than sufficient.
How would impeaching Bush save lives? Outline the process for us, because it isn’t at all clear to me.
That’s fine. But the question of the OP is: Do you think this will happen once his term is up?
It is a question seeking a prediction about what will happen a year from now.
The most reasonable answer is that he will not be indicted. Anyone can see that. Even if the evidence were much stronger, that would be true. But to say that there is no reasonable way he could be indicted is wrong. Normal people get indicted on this amount of evidence all the time. It isn’t simply a matter of totally unforeseen evidence arising–that’s as true for me and you as it is for Bush. It is a matter of the facts we know receiving more attention and investigation. That’s a significant difference.
Not exactly – they were intended to highlight the difference betweem “international law” and the criminal law of the United States. As a general principle, international law doesn’t operate in the same way that a country’s criminal law does; we don’t see people indicted for violating “international law”. It was this distinction that I was trying to Socratically illustrate.
Didn’t mean to come off as a jerk about it, and if I did, I apologize.
No worries- I usually find your posts on law related threads to be intersting and informative, but was just thrown a bit on this one 
I don’t, simply because we would be well within our next, new Presidency before anything would ever come of his impeachment proceedings. Totally useless move IMO. That’s basically the only reason though.
Something I just thought of: former federal prosecutor Elizabeth de la Vega drew up a hypothetical single count indictment of Bush, Cheney, Rice, Rumsfeld and Powell for conspiracy to defraud the United States, a crime with a penalty of up to five years under 18 U.S.C. Sec. 371. I don’t think there’s a chance in hell it would ever happen (and even if it did I have doubts that it would pass judicial scrutiny), but it’s an interesting read that appears to pass the ham sandwich test on its face.
When you already add in “cry wolf” to your statements, it indicates, to me, that you’ve made up your mind already about the criticism. Like all criticism (except criticism of me, which is always wrong), some is valid, some isn’t. It should be determined which is which on the basis of facts, not on the basis of someobdy else complained about something different.
Very, very briefly, here is the criminal part of FISA. And here is the NY Times article outlining the actions of the President.. Very basically, Bush authorized the surveillance of US citizens without obtaining court orders as required by FISA.
Oh, I agree. Especially when you consider how well insulated Bush is. It’s reminiscent of Iran Contra, where scapegoats abound and the administration has plausible (snort) deniability.
Three things, generally. First, allowing for the rendition of prisoners to countries such as Jordan, Syria, or Egypt for extraction of information. Second, for setting the DOD’s policies regarding the treatment of prisoners. Third, Abu Ghraib. In each of these cases, as you note, it would be incredibly difficult, without actual investigations, to pin these directly on Bush. I think there is enough evidence, with Karpinski’s statements, to trace it up to Rumsfeld, but getting to the next step would be tough.
I’m not going to write up an indictment. I’m sure you could find a bunch online if you’re interested. I can give very basic outline. The best charge is, I think, the FISA violations. Simply charge him for authorizing the interception of communications of US citizens without a warrant, using the language of FISA. Something along the lines of “The Grand Jury charges that … That in November 2001, George HW Bush did aid and abet in the intentional electronic surveillance of US citizens with said surveillance not being conducted pursuant to a search warrant or court order of a court of competent jurisdiction, and further said surveillance did occur; in violation of … blah blah blah.” Of course the specifics of the charge (the dates surveillance occured, the identity of the surveilled) would have to be determined. I suppose you could allege the ones in the Al-Haramain Islamic Foundation’s case.
As to torture, use the particulars of Abu Ghraib, or the case of El Masri. War Crimes could be written pursuant to the code section. Invading Iraq would be a tough one, but doable I think because, as Kofi Annon thinks, it was illegal. Throw in the torture, rendition, and the rest, and it would be a catch all.
I realize this post can’t provide you with the level of specifics you want, or those necessary for an indictment.
It is an interesting read. But if there’s any real interest in a follow-on, I would be happy to take a swing at writing the motion to quash as to defendent Bush, which I believe would be a slam-dunk – not because of my outstanding legal skills, either.
Presidential immunity, political question, both? Something else?