Friday, December 19, 2008

WILL OBAMA GIVE BUSH & CHENEY AN ILLEGAL PASS ON THEIR WAR CRIMES?

Raw Story - Vice President Dick Cheney confessed to approving torture, Senate Armed Services Committee Chairman Carl Levin (D-MI) told MSNBC's Rachel Maddow. During an interview with ABC News on Monday evening, Cheney had said "I supported it," referring to the practice known as "water boarding," a form of simulated drowning.

"I was aware of the program, certainly, and involved in helping get the process cleared, as the agency in effect came in and wanted to know what they could and couldn't do," Cheney said. "And they talked to me, as well as others, to explain what they wanted to do. And I supported it."

"Did he just admit to condoning torture?" Maddow queries.

"As far as I'm concerned, that's exactly what he admitted," Levin said after a pause to shut his eyes, and shake his head as if still in disbelief. . .

Senator Levin oversaw an 18-month long investigation into the Bush administration's torture policy that established that the abuse of prisoners at Abu Ghraib, and Guantanamo Bay resulted from policies introduced by George W. Bush. . . .

"Do there need to be prosecutions?" Maddow asked, steering the discussion towards the possibility of prosecution and indictments by noting that the Armed Services Committee report on the treatment of U.S. detainees seemed as if its purpose had been the gathering facts for an indictment.

Levin spoke hopefully that the Obama administration would take some "major steps" as "clearly this Justice Department is not willing," and the need for an independent commission that could be appointed by the Obama administration to examine the role of the CIA in the treatment of U.S. detainees as their role has not yet been made clear. Then with all the facts they "may or may not lead to indictments, or civil action."

Glenn Greenwald, Salon - Demands that Bush officials be held accountable for their war crimes are becoming more common in mainstream political discourse. . . The mountain of conclusive evidence that has recently emerged directly linking top Bush officials to the worst abuses -- combined with Dick Cheney's brazen, defiant acknowledgment of his role in these crimes (which perfectly tracked Bush's equally defiant 2005 acknowledgment of his illegal eavesdropping programs and his brazen vow to continue them) -- is forcing even the reluctant among us to embrace the necessity of such accountability.

It's almost as though everyone's nose is now being rubbed in all of this: now that the culpability of our highest government officials is no longer hidden, but is increasingly all out in the open, who can still defend the notion that they should remain immune from consequences for their patent lawbreaking? As Law Professor Jonathan Turley said several weeks ago on The Rachel Maddow Show: "It's the indictment of all of us if we walk away from a clear war crime." And this week, Turley pointed out to Keith Olbermann that "ultimately it will depend on citizens, and whether they will remain silent in the face of a crime that has been committed in plain view. . . . It is equally immoral to stand silent in the face of a war crime and do nothing."

That recognition, finally, seems to be spreading -- beyond the handful of blogs, civil liberties organizations and activists who have long been trumpeting the need for this accountability. The New York Times editorial page today has a lengthy, scathing decree demanding prosecutions: "It would be irresponsible for the nation and a new administration to ignore what has happened . . . . A prosecutor should be appointed to consider criminal charges against top officials at the Pentagon and others involved in planning the abuse." Today, Politico -- of all places -- is hosting a forum which asks: "Should the DOJ consider prosecuting Bush administration officials for detainee abuse as the NYT and others have urged?" Even Chris Matthews and Chris Hitchens yesterday entertained (albeit incoherently and apologetically) the proposition that top Bush officials committed war crimes. . .

Those who demand accountability will be derided as past-obsessed partisans who want to impede all the Glorious, Transcendent Gifts about to be bestowed on us by our new leaders. The manipulative claim will be endlessly advanced that our problems are too grand and pressing to permit the luxury of living under the rule of law. When all else fails in the stonewalling arsenal, impotent "fact-finding" commissions will be proposed to placate the demand for accountability but which will, in fact, be designed and empowered to achieve only one goal: to render actual prosecutions impossible.

But with these new, unprecedentedly stark revelations, this facade will be increasingly difficult to maintain. It is already the case, as the Times Editorial today notes, that "all but President Bush's most unquestioning supporters [i.e., this] recognized the chain of unprincipled decisions that led to the abuse, torture and death in prisons run by the American military and intelligence services." That leaves only two choices: (1) treat these crimes as the serious war crimes they are by having a prosecutor investigate and, if warranted, prosecute them, or (2) openly acknowledge -- to ourselves and the world -- that we believe that our leaders are literally entitled to commit war crimes at will, and that we -- but not the rest of the world -- should be exempt from the consequences. The clearer it becomes that those are the only two choices, the more difficult it will be to choose option (2), and either way, there is great benefit just from having that level of clarity and candor about what we are really doing.

Marjorie Cohn, Global Research - U.S. courts have long held that waterboarding, where water is poured into someone's nose and mouth until he nearly drowns, constitutes torture. Our federal War Crimes Act defines torture as a war crime punishable by life imprisonment or even the death penalty if the victim dies.

Under the doctrine of command responsibility, enshrined in U.S. law, commanders all the way up the chain of command to the commander-in-chief can be held liable for war crimes if they knew or should have known their subordinates would commit them and they did nothing to stop or prevent it.

Why is Cheney so sanguine about admitting he is a war criminal? Because he's confident that either President Bush will preemptively pardon him or President-elect Obama won't prosecute him. Both of those courses of action would be illegal.

First, a president cannot immunize himself or his subordinates for committing crimes that he himself authorized. On February 7, 2002, Bush signed a memo erroneously stating that the Geneva Conventions, which require humane treatment, did not apply to Al Qaeda and the Taliban. But the Supreme Court made clear that Geneva protects all prisoners. Bush also admitted that he approved of high level meetings where waterboarding was authorized by Cheney, Condoleezza Rice, John Ashcroft, Colin Powell, Donald Rumsfeld and George Tenet.

Attorney General Michael Mukasey says there's no need for Bush to issue blanket pardons since there is no evidence that anyone developed the policies "for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful." But noble motives are not defenses to the commission of crimes.

Lt. Gen. Antonio Taguba, who investigated the Abu Ghraib scandal, said, "There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."

Second, the Constitution requires President Obama to faithfully execute the laws. That means prosecuting lawbreakers. When the United States ratified the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, thereby making them part of U.S. law, we agreed to prosecute those who violate their prohibitions.

The bipartisan December 11 report of the Senate Armed Services Committee concluded that "senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees."

Lawyers who wrote the memos that purported to immunize government officials from war crimes liability include John Yoo, Jay Bybee, William Haynes, David Addington and Alberto Gonzales. There is precedent in our law for holding lawyers criminally liable for participating in a common plan to violate the law. . .

During the campaign, Obama promised to promptly review actions by Bush officials to determine whether "genuine crimes" were committed. He said, "If crimes have been committed, they should be investigated," but "I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we've got too many problems we've got to solve."

Two Obama advisors told the Associated Press that "there's little-if any – chance that the incoming president's Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.". . .

Obama has promised to bring real change. This must be legal and moral change, where those at the highest levels of government are held accountable for their heinous crimes. The new president should move swiftly to set an important precedent that you can't authorize war crimes and get away with it.

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