Friday, December 19, 2008

War Crimes! War Crimes! Read All About It

Nine days ago (apologies for the late post--finished my semester and came back to the United States), the Senate released a bipartisan report from the Judicial Committee (the Levin-McCain Report) alleging that President Bush opened the door to torture and abuse by signing a memorandum that said that the Geneva Conventions did not apply in the fight against al Qaeda. The military, under direction of Donald Rumsfeld, put men unqualified in interrogations in charge of training new interrogators. Rumsfeld then signed a list of torture methods (including waterboarding, which was an executable offense in World War Two). White House Counsel John Yoo wrote a memo creating the legal grounds for ignoring the Geneva Conventions, as did White House Counsel Alberto Gonzales (who called the Geneva Conventions "quaint").

Now what.

It's been eight days since the report. I've heard the blogosphere chattering, but a disgraceful lack of anything official on the subject. After all, the consensus is that the incoming Congress and the incoming Senate are going to have to deal with this subject. I have no clue on how Barack Obama is going to stand. On the one hand, he believes that returning the image of America as a just society, ending America's role in torture and indefinite detention (for instance, his determination to have Guantanamo Bay's prison camp closed within two years--a timeline that I wish was quicker, but I'll survive with). On the other hand, when it comes to political figures, he has shown a taste for reconciliation rather than recrimination (Lieberman comes to mind). Of course, when he has been reconciling, it has been over politics rather than war crimes.

I want to believe that Barack Obama will do the right thing. And the right thing for him to do is this: he should direct AG Holder, upon assuming office, to appoint Patrick Fitzgerald (who has taken down a high profile Republican and a high profile Democrat) Special Prosecutor to investigate war crimes.

I mean, it's pretty straightforward. It's on everyone's mind.

The only thing I'm worried about is the President's absolute power of pardon. I did my bit, and sent some letters to try and convince my Senators to back up Congressman Nadler's bill that would suggest that the President not use his pardon to pardon members of his own administration, and I got the following response from Senator Feinstein:

Thank you for your letter concerning President Bush's executive authority to issue pardons. I appreciate hearing from you.

On November 20, 2008 Representative Jerrold Nadler (D-NY) introduced H. Res.1531, which expressed the sense of the House of Representatives that the President of the United States should not issue pardons to senior members of his Administration during his final 90 days in office. H.Res.1531 has been referred to the House Committee on the Judiciary.

Please know that I have read and understand your concern about the potential abuse of presidential pardons by President Bush. Article II, Section 2 of the U.S. Constitution gives the President "power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." A reprieve reduces the severity of a punishment without removing the guilt of the person reprieved. A pardon removes both punishment and guilt.

Most judicial scholars interpret the President's power to grant reprieves and pardons as absolute. Individual reprieves and pardons cannot be blocked by Congress or the courts. The Framers of the Constitution envisioned the pardon power as having a narrow purpose. It is my hope that President Bush will use his Constitutional authority wisely.

Once again, thank you for taking the time to write me. I hope you will continue to keep in touch with me on issues of importance to you. If you have any questions or comments, please call my Washington, D.C. office at (202) 224-3841. Best regards.

I do have to say, one of the biggest reasons that Congress is not a sufficient counter-weight against the President is simply their refusal to fight the President in the court system sometimes. Executive Privilege and the pardon powers have grown too much, and the idea that Senator Feinstein is willing to bet the concept of Justice in America on President Bush using his Constitutional authority wisely... it is absurd.