- Could George Bush, Dick Cheney, Donald Rumsfeld, and
maybe Alberto Gonzales all end up sucking poison gas?
- That, apparently, is a concern now being taken seriously
by Attorney General Gonzales, who is quietly working with senior White
House officials and friendly members of Congress to do what murderous dictators
in Chile, Argentina and other bloodthirsty regimes have done as their future
in office began to look uncertain: pass laws exempting them from prosecution
- At issue is a growing legal threat of the president and
other top administration officials facing prosecution for violations of
the U.S. War Crimes statutes, which since 1996 have made violation of Geneva
Conventions adopted by the U.S. violations of American law, too.
- Gonzales knows the seriousness of this threat. As he
warned the president, in a January, 25, 2002 "Memorandum to the President"
(published in full in the appendix of Barbara Olshansky's and my new book,
The Case for Impeachment), "It is difficult to predict the motives
of prosecutors and independent counsels who may in the future decide to
pursue unwarranted charges based on Section [the US War Crimes law]."
In another part of that same memo, Gonzales notes that the statute "prohibits
the commission of a `war crime'" by any U.S. official, with a war
crime being defined as "any grave breach of" the Geneva Convention
on the Treatment of Prisoners of War or of the Geneva Convention's Article
3. That article extends protection to combatants in other than official
wars or formal armies. Gonzales, in that memo, also pointedly notes that
the punishments for such violations, under U.S. law, in the event that
mistreated captives die in custody, "include the death penalty."
- What has the White House, and Bush's mob attorney, Gonzales,
worried is the decision last month by the U.S. Supreme Court in Hamden
v. Rumsfeld, which expressly established that the president has "violated"
the Geneva Convention's Article 3 by arbitrarily deciding that captives
in the so-called War on Terror and in Afghanistan, and held in Guantanamo,
would not be considered POWs, and would not be accorded protection from
torture or access to the courts as required under the Geneva Convention.
This determination by a 5-3 majority of the US Supreme Court could easily
provide the basis for the very "unwarranted" prosecution Gonzales
- Of course, the president could not be indicted for this
offense while in office. The Constitution provides a protection against
that. But he could be indicted once his term ends. Meanwhile, other administration
personnel, including the vice president, have no such protection against
indictment even while in office.
- The very fact that Gonzales, according to a report in
today's Washington Post, has been "quietly approaching" Republican
members of Congress about passing legislation exempting Americans involved
in the "terrorism fight" from war crimes prosecution suggests
how worried Bush and his subordinates really are.
- It's interesting how this has become the tactic of choice
for the criminals in the White House. When Bush was caught violating the
clear provisions of the Foreign Intelligence Surveillance Act by authorizing
spying by the National Security Agency on Americans' communications without
a warrant, the administration went to Congress to seek legislation retroactively
authorizing the crime. Since the president was exposed as having summarily
and unconstitutionally invalidated some 800 laws passed by Congress through
the use of what he calls "signing statements," an astonishing
breach of the separation of powers, the administration has been seeking
a new law in Congress that would in effect grant that power to presidents,
again retroactively. Now Bush is apparently hoping to get the same compliant
Republican-led House and Senate to backdate a law exempting him and his
cohorts from punishment under the War Crimes statute--a law, ironically,
passed almost without objection by both houses of a Republican-led Congress
- Of course, this attempt at a legal dodge might not work.
Not only could a future prosecutor seek to have such a law ruled illegal
itself (after all, the U.S. is a signatory of the Geneva Conventions, making
them legally binding anyhow), but because the U.S. is a signatory of the
Geneva Conventions prohibiting torture in any form, the president and his
subordinates could also be charged as war criminals by other nations--particularly
if it were determined that the U.S. was unwilling or legally unable to
- That could make things a little claustrophobic for administration
personnel once they leave office.
- No doubt Bush, Cheney, Rumsfeld et all would like to
continue their world travels once they leave government "service."
For one thing, there's lots of money to be made on the international speaking
circuit. Lots more can be made by doing international business consulting.
But if there were a threat of arrest and prosecution by prosecutors in
countries like Spain, Germany or Canada, such travels would pose a huge
risk. Similar fears have kept former National Security Director and Secretary
of State Henry Kissinger pretty much housebound since a near detention
in Paris on war crimes charges a few years back.
- Gonzales' anxious behind-the-scenes scuttling about in
the halls of Congress in an effort to save his boss's neck also suggests
that the White House is getting anxious about the November election. After
all, if they thought they had a secure grip on Congress through November
2008, why the sudden rush to get a bill through undermining the War Crimes
statute now? Maybe Bush is afraid that if he waits until November, he'll
be dealing with a Democratic House and/or Senate, which would be unlikely
to grant him such legal protection.
- There is a delicious irony in watching this law-and-order,
let-'em-fry president and his tough-guy VP, attorney general and defense
secretary, resorting to the same kind of dodgy legal tactics that they
accuse convicted killers (and terrorists) of using in an attempt to avoid
- Chances are their strategy will work, at least in the
U.S. But at least it's entertaining to watch.