by Kagro X
Today's appearance by Attorney General Alberto Gonzales before the Senate Judiciary Committee provided a good opportunity for Senators to hint that they may, at long last, understand just what kind of "administration" they're dealing with. I'll have to wait until transcripts become available to hit the highlights.
In the meantime, the media's favorite nugget of the day was the revelation that Bush personally blocked the DoJ's Office of Professional Responsibility (OPR) from pursuing its NSA spying investigation. But even this juicy bit didn't get the scrutiny it deserves. Remember when our friend Murray Waas discussed this incident? Remember what he told us? It was that the investigation wasn't a probe into the legality of the program, but rather:
An internal Justice Department inquiry into whether department officials -- including Attorney General Alberto Gonzales and then-Attorney General John Ashcroft -- acted properly in approving and overseeing the Bush administration's domestic eavesdropping program....
That's damned important to keep in mind!
It wasn't that Bush blocked an investigation into the program's propriety. It was that he blocked an investigation into whether or not the Justice Deparment acted properly in advising him that it was legal.
If Hamdan really did open up the possibility that the "administration's" justification for the NSA spying program is without foundation, then that exposes them to the possibility of criminal liability. And so long as no investigation faults the actions of the DoJ's top brass in the way they rendered their advice to the president, "administration" officials may still claim a "good faith" reliance on the advice of their legal counselors. You know, the Shaun Hansen defense.
And today we heard a question from one Senator (was it Schumer?) that harkened back to the old "Geneva Conventions are quaint" memos, noting that they contain the outlines of a proposed legal defense against charges of war crimes. Among the "positive" aspects of concluding that the Geneva Conventions do not apply:
- Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).
- That statute, enacted in 1996, prohibits the commission of a "war crime" by or against a U.S. person, including U.S. officials. "War crime" for these purposes is defined to include any grave breach of GPW [the Geneva Convention III on the Treatment of Prisoners of War] or any violation of Common Article 3 thereof (such as "outrages against personal dignity"). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban.
- Adhering to your determination that GPW does not apply would guard effectively against misconstruction or misapplication of Section 2441 for several reasons
- First some of the language of the GPW is undefined (it prohibits, for example, "outrages upon personal dignity" and "inhuman [sic] treatment"), and it is difficult to predict with confidence what actions might be deemed to constitute violations of the relevant provisions of GPW.
- Second, it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.
- Third, 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 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.
Another "affirmative defense" based on the Nixon/Bush/Addinton/Yoo "it's not illegal if the president [orders] it" theory.
But there are two layers in operation here. Ordinarily, there's the defense that subordinate officers are relying in good faith on a determination made by the president. But there's also supposed to be good faith by the president in making the determination. That is, the determination should reasonably comport with the state of the law. Can it really count as a "good faith" determination when it's made not on the basis of the current state of the law, but rather with the express intent of avoiding prosecution?
This, as usual, brings to mind for me the determination at the top levels of the DoJ to reverse the decision of its own Civil Rights Division with respect to the Texas redistricting. Why? Because it takes advantage of the same mechanism: protecting the execution of something undertaken in contravention to law, under the cover of an executive determination that it's OK if the president (or "unitary executive") says so.
And indeed, it has been pointed out that the determination that GPW did not apply to prisoners detained in the war on terror overturned the recommendations of the military brass and other career legal experts, just as was the case with redistricting.
Now, we find out that the DoJ's Office of Professional Responsibility, too, has been overruled from the top. And about what were they overruled? Their investigation into whether or not overruling DoJ officials like James Comey, who objected to the structure of the NSA spying program and refused to sign off on it, was itself improper.
One of the questions that I can recall off the top of my head from today's hearing came from Sen. Feinstein, who asked whether, given DoD's response to Hamdan -- i.e., that they had issued a memo insisting on compliance, henceforth, with Common Article 3 -- was going to be mirrored in instructions to the CIA and any other intelligence agencies who might be holding prisoners in custody. That is, were they, too, going to be instructed from above that they must comply with Common Article 3?
The answer, predictably, was no. Why not? The answer from Gonzales was, essentially, because no one had asked for guidance.
Where's our famous "unitary executive" now? The White House waits to be asked for guidance in these matters? And the CIA is free to interpret Hamdan on its own, absent a request that the White House do it for them?
Gonzales insisted to Feinstein that the executive branch had a "process" for this, and that the White House and/or the DoJ didn't just go around issuing memos every time the Supreme Court issued a ruling.
And I'm sure they do have a "process." The problem is that we're actually beginning to understand what that "process" is. Or at the very least, how the final stages of that "process" works -- it ends, more or less uniformly, with the advice of career officials who reject the "administration's" desired course of action being overruled at the top levels. No wonder, then that as our understanding of this "process" grows, so too does the Bush "administration's" obstruction of our efforts to learn more.
You can be sure that should the "process" come into clearer focus in the future, Republican apologists will be howling that the investigations seek to "criminalize politics." Because for Republicans, subversion of the administrative process -- and for that matter, the law, international treaty obligations, and the Constitutional order itself -- is, at bottom, "just politics."