Applying the Rule of Law to All Heads of State
During the run-up to the 2008 Presidential election, legal developments not directly related to the historic McCain-Palin/Obama-Biden contest got little attention. Now that the election is over, several recent but little-reported criminal prosecutions, with potentially great significance for members of the outgoing and incoming administrations, deserve a second look, even though impeachment is a practical impossibility before Obama’s inauguration on January 20, 2009.
The recent “torture” conviction the son of Liberia’s notorious former President Charles Taylor in Miami federal court has the potential to advance the Rule of Law, and to strengthen the concept that even vast power does not create impunity for the commission of great crimes, even by governmental figures claiming sovereign perogative. And the arrest warrants sought by International Criminal Court Chief Prosecutor Luis Moreno-Ocampo for President Bashir of Sudan demonstrate that even the presidents of countries that have not ratified the ICC-Treaty of Rome can be called to account in international tribunals.
Presidential Legal Liability In Office, and Out
One important measure of any legal system, grounded in equality and due process before the law, is “equivalency before the law” for the privileged and powerful….as well as those less-favored by vagaries of birth and status. The recent conviction of Alaska Senator Stevens is only the most recent example of this principle in practice.
And, the various Clinton-era legal battles established that even a sitting president is not immune from civil liability arising before the presidential term and though even “high crimes and misdemeanors” may not be domestically-prosecuted during a presidential term, there is no established doctrine of immunity from domestic criminal liability following the end of a presidential term, or from international legal standards, either during or after a presidency.
The anticipatory pardon of Richard Nixon by the recently-elevated President Ford would not have been necessary if ex-presidents are not culpable under domestic criminal law for crimes committed during their presidency. It is not clear that even a blanket presidential pardon, ala “Scooter” Libby, can insulate executive branch members from potential international criminal culpability. Also, there is no obvious precedent for presidential power to grant an anticipatory pardon president’s own crimes.
Overseas Violation of the Convention Against Torture as a Domestic Crime
Earlier this month, “Chuckie Taylor”, the son of former Liberian President Charles Taylor, now facing trial at The Hague, became the first US citizen in history to be convicted under 18 USC §2340-2340A, a 1994 federal statute that criminalizes violations of the Convention Against Torture by any US citizen, anywhere in the world.[1] The Bush Justice Department was successful in arguing the constitutionality of §2340A and its applicability to a US citizen for crimes committed in Liberia between 1999 and 2003.
Ironically, this overlaps with the period during which the Bush executive branch itself was engaging in what the CIA’s George Tenet euphemistically called “enhanced interrogation techniques” in secret CIA overseas prisons and in places like Abu Ghraib and Guantamo. The CIA apparently adopted “waterboarding” and other “torture” tactics when their first high-level captive refused to cooperate in late 2001 or early 2002 [2], and the “torture stain” began to spread to other executive-branch services.
"Top Cover"
Tenet did not get written approval for “enhanced interrogations” from the White House until after the Abu Ghraib scandal erupted in June 2004. By then, CIA officials, apparently including the Office of General Counsel, demanded explicit proof of White House support for the CIA torture program.
But, according to Condoleezza Rice’s written Senate testimony last month, long before 2004 other executive branch agencies were so “uncomfortable” with CIA interrogation methods that she specifically asked then-Attorney General Ashcroft to “…advise the NSC principles whether the CIA program was lawful….under U.S. laws or international treaties.”[3] Apparently the result was the famous 2002 “torture memo” prepared for the Justice Department Office of Legal Affairs (OLA) by John Yoo, John Delahunty and other deputies.[4]
According to a Washington Post article, despite these misgivings in other executive-branch agencies “....[f]ormer and current CIA officials say no...reservations [regarding the legality of the CIA “torture” program] were voiced in their presence...”.[5] The major concern within the CIA was that the agency had political “top cover” in the event the torture program was ever discovered.
“I]n the agency’s view.... ‘[w]e don’t want to continue unless you tell us in writing that it is not only legal, but is the policy of the administration’…[t]he CIA understood that [the interrogation program] was controversial and would be widely criticized if it became public.”[6] According to the Post, no one in the CIA General Counsel’s Office expressed objections to the legality of the secret “enhanced interrogation” program.[7]
OLA’s Goldsmith: Crimes of the “Terror Presidency”
By 2004, after the exposure of torture at CIA “black sites” and “extraordinary renditions,” the CIA euphemism for kidnapping and outsourcing torture to foreign experts, as well as abuses at Abu Ghraib and Guantanamo, a new lawyer was brought in to head the OLA. Former University of Chicago law professor Jack Goldsmith was shocked to find the shoddy legal analysis that Yoo and his staff had used to justify violations of long-standing statutory, constitutional and treaty prohibitions against the use of torture by the United States government. As described in Goldsmith’s insider account, The Terror Presidency,[8] Bush’s Presidential Chief Counsel Addington, Yoo and his OLA deputies were responsible for the pre-2004 assurances that the CIA program was “lawful,” which were not challenged by the CIA General Counsel’s Office.
According to Goldsmith, the legal reasoning was so transparently inadequate that a complete re-writing of the OLA Opinion defining the “torture options” available to executive branch was undertaken. In was not until 2004 that Goldsmith was able to force through the new standards that were much, much closer to the requirements of the Convention Against Torture and the terms of 18 USC §2430A, by threatening to resign if the Bush Justice Department did not replace the John Yoo 2002 OLA opinion [9], an extraordinary event according to OLA protocols.[10]
