Monday, September 18, 2006

Congress is powerless to absolve Bush of capital crimes and torture charges

by Len Hart, The Existentialist Cowboy 

Bush is in a heap of trouble. The US Congress should be impeaching Bush —NOT conspiring with him to cover his backside! Whatever torture compromise may work its way through an intimidated Congress, it must not help Bush. The US Constitution requires nothing less than a Constitutional Amendment to relieve U.S. obligations under the Geneva convention. At least one Constitutional provision means that nothing legal can get Bush off the hook for the crimes that he has already committed.

Bush seeks an ex post facto law that will make legal —after the fact —his violations of the Geneva Convention having to do with torture.
No bill of attainder or ex post facto Law shall be passed.

—US Constitution, Article I
That means that Bush cannot commit crimes and make them "legal" later. That includes his having ordered summary executions and brutal tortures, only to have them made legal ex post facto, The Constitution flatly states that it doesn't work that way!
George Washington University Professor and Countdown resident Constitutional expert Jonathan Turley joined Keith tonight to discuss the legal implications of President Bush’s proposed changes to Article III of the Geneva Conventions. Keith raises an obvious yet seldom mentioned point: Is the Bush administration trying to retroactively legalize crimes it very well may have already committed? Wouldn’t be the first time.
—John Amato, Crooks and Liars
Bush is beyond help from a mere act of Congresst. It'll take either the second coming or a constitutional amendment to change any US treaty obligation; the chances of that happening are very, very slim.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

US Constitution, Article VI, Annotations
Therefore, the Geneva Convention is the supreme law of the land and Bush is subject to it even if Congress should pass a measure that attempts to pardon him or, in any other way, absolve him of the capital crimes that he has already committed.

 US Codes, Title 18, § 2441. War crimes bind the US to the those international treaties which address issues of war crimes, crimes against the peace and crimes against humanity. Bush deliberately violated all of them. There is probable cause to bring severe criminal charges against Bush now. If the US government had not been hijacked by a handful of crooked corporations, Bush would already have been impeached, tried, and removed from office to stand trial in ordinary criminal courts. Partisan politics has kept him in office.

Meanwhile in London, Britain's Attorney-General Lord Goldsmith warns that the US risks "international condemnation" should it try to renounce Geneva or limit its obligations. Goldsmith's comments come after a US Senate committee rejected changes in the law that Bush had demanded. An alternative measure has been proposed by GOP Senator John McCain and supported by former Secretary of State, Colin Powell, who stated earlier:
The world is beginning to doubt the moral basis of our fight against terrorism.

—Colin Powell
The world has every reason to doubt. There is no moral basis for the US position and the actions taken on Bush's watch. Bush, like Hitler before him, has thumbed his nose at US international obligations though we are bound to them by our own Constitution —the supreme law of the land.

The media has done the American public a disservice, dealing with this story in Orwellian terms, calling torture "tough questioning" or "stringent interrogation techniques" or some other absurd euphemism. Bush, himself, calls it "an alternative set of procedures"! Hey! We're talking about torture, folks! It's a crime! And when death results —as it has in fact —it's a capital crime prohibited by federal laws, punishable by death.

Moreover, it will take a constitutional amendment to undo those obligations and even that will not exonerate Bush after the fact. Bush perpetrated a fraud upon the nation in order to wage of war of naked aggression, itself a war crime under the Nuremberg Principles. Then, in the course of waging that criminal war, Bush violates Geneva which he now pressures Congress to abjure. My position is: it is not Geneva that Congress should abjure —but Bush! Instead of papering over his crimes with what Bush hopes will exculpate his sorry ass, the Congress should be drafting his impeachment.

An update:

People have died under U.S. torture

Published: September 23, 2006
The writer of the Sept. 21 letter of the day, "They may be detained, but they get food," ignores the Pentagon's admission that more than 20 detainees deaths have been classified as homicides in Iraq, Afghanistan and Guantanamo.
These deaths were at the hands of U.S. soldiers and civilian contractors, in our facilities. Decent food, medical treatment and humane conditions did not help these detainees. They are dead through some means of torture.
The letter writer also suggested liberals don't understand the enemy we face. Quite the contrary, we see the inhumanity all around and question the leadership, direction and tactics of our war against terrorists.
The US War Crimes Act of 1996 makes it a felony to commit grave violations of the Geneva Conventions. The Washington Post recently reported that the Bush administration is quietly circulating draft legislation to eliminate crucial parts of the War Crimes Act. Observers on The Hill say the Administration plans to slip it through Congress this fall while there still is a guaranteed Republican majority–perhaps as part of the military appropriations bill, the proposals for Guantánamo tribunals or a new catch-all “anti-terrorism” package.
As David Cole of the Georgetown University Law Center pointed out in the August 10 issue of The New York Review of Books, the Supreme Court’s decision in Hamdan v. Rusmfeld “suggests that President Bush has already committed a war crime, simply by establishing the [Guantánamo] military tribunals and subjecting detainees to them” because “the Court found that the tribunals violate Common Article 3–and under the War Crimes Act, any violation of Common Article 3 is a war crime.” A similar argument would indicate that top US officials have also committed war crimes by justifying interrogation methods that, according to the testimony of US military lawyers, also violate Common Article 3.
Lo and behold, the legislation the Administration has circulated on Capitol Hill would decriminalize such acts retroactively.

Jeremy Brecher and Brendan Smith, The Nation 
From Joseph Story's venerable Commentaries on the Constitution:
§ 1339. Of the same class are ex post facto laws, that is to say, (in a literal sense,) laws passed after the act done. The terms, ex post facto laws, in a comprehensive sense, embrace all retrospective laws, or laws governing, or controlling past transactions, whether they are of a civil, or a criminal nature.

—Joseph Story, Commentaries on the Constitution 3:§§ 1338--39
And from a more contemporary commentator, the syndicated liberal talk personality from KCAA, Los Angeles:
There is no slicker way to exalt Bush above the law than to simply make legal the laws he's already broken. ...
I have more to say about ex post facto attempts to make legal the numerous crimes Bush has committed but first the Hamden decision to date: In Hamdan v. Rumsfeld, handed down June 29, the United States Supreme Court ruled that George W. Bush exceeded his authority. Neither the Congressional Authorization for the Use of Military Force, the Uniform Code of Military Justice (UCMJ), nor the so-called inherent powers give Bush a legal authority to set up military tribunals at Guantanamo.
For those of us who have maintained for some time now that Bush is a "war criminal" -- who has breached not only international conventions but also U.S. criminal codes -- the high court's decision is vindication. In effect, SCOTUS has said that for a period of some five years, the Bush/Rumsfeld/Cheney gang has been guilty of violating the Third Convention on treatment of prisoners of war as well as a U.S. federal law of 1996 which binds the U.S. executive to those relevant parts of the Geneva convention.
Predictably, a conspiratorial GOP is scrambling to let Bush off the hook, even though he is most certainly guilty of violating U.S. and international law. Sen. John McCain, R-Ariz., says that Congress will reverse the Supreme Court's declaration and Sen. Arlen Specter is already at work on the language of the bill. I submit to Sen. McCain that Congress does not have the authority to reverse a decision of the supreme court; it can only pass a new law addressing its objections. Moreover, there is no precedent for excusing culprits ex post facto! On it its face, this is unfair; but more importantly, unconstitutional
No bill of attainder or ex post facto Law shall be passed.

Article I, U.S. Constitution
Bush and his GOP co-conspirators are routinely at odds with the supreme law of the land but also simple common sense. Because ex post facto laws change —after the fact —the legal consequences of acts already committed, the ex post facto law becomes an instrument of oppression and tyranny. Hoping to crack down on dissenters, for example, a government need only make the voicing of certain opinions a crime but only after they've been printed, broadcast or spoken. Such a government need only make the law, round up the usual suspects, and prosecute them for actions that were legal at the time of their commission. Conversely, the dictator-in-chief in such a society need only subvert the very foundations of law and order itself and demand that his actions be made legal —after the fact! Convenience is the enemy of the rule of law.
—Barry Gordon, summa cum laude political science, California State University, Los Angeles; J.D. Loyola Law School, 1991,
A law, however, cannot be denominated retrospective, or ex post facto, which merely changes the remedy, but does not affect the right.

—U.S. Supreme Court, HOLLINGSWORTH v. STATE OF VIRGINIA, 3 U.S. 378 (1798)
The Torture President
Additional resources:
I am pleased to have been picked up by a French language blog called Paroles de Québécois Here's a portion of the story they wrote about the ex post facto issue:
J'ai mentionné précédemment que Bush cherchait un pardon rétroactif pour les crimes qu'il a commis en relation avec la convention de Genève sur le traitement des prisonniers. Heureusement, la voie qu'il poursuit est anticonstitutionnelle en raison de ce petit "bout de papier" (le terme utilisé par Bush pour référer à la constitution, ironiquement le seul et unique devoir du président est de la faire respecter), particulièrement cette ligne révélatrice:
    No bill of attainder or ex post facto Law shall be passed.

    —US Constitution, Article I
Howard Zinn's name has come up several times now in the comments section. Here's Zinn's latest essay:
America’s Blinders

By Howard Zinn

April 2006 Issue

Now that most Americans no longer believe in the war, now that they no longer trust Bush and his Administration, now that the evidence of deception has become overwhelming (so overwhelming that even the major media, always late, have begun to register indignation), we might ask: How come so many people were so easily fooled?
The question is important because it might help us understand why Americans—members of the media as well as the ordinary citizen—rushed to declare their support as the President was sending troops halfway around the world to Iraq.
A small example of the innocence (or obsequiousness, to be more exact) of the press is the way it reacted to Colin Powell’s presentation in February 2003 to the Security Council, a month before the invasion, a speech which may have set a record for the number of falsehoods told in one talk. In it, Powell confidently rattled off his “evidence”: satellite photographs, audio records, reports from informants, with precise statistics on how many gallons of this and that existed for chemical warfare. The New York Times was breathless with admiration. The Washington Post editorial was titled “Irrefutable” and declared that after Powell’s talk “it is hard to imagine how anyone could doubt that Iraq possesses weapons of mass destruction.”
It seems to me there are two reasons, which go deep into our national culture, and which help explain the vulnerability of the press and of the citizenry to outrageous lies whose consequences bring death to tens of thousands of people. If we can understand those reasons, we can guard ourselves better against being deceived.
One is in the dimension of time, that is, an absence of historical perspective. The other is in the dimension of space, that is, an inability to think outside the boundaries of nationalism. We are penned in by the arrogant idea that this country is the center of the universe, exceptionally virtuous, admirable, superior.
If we don’t know history, then we are ready meat for carnivorous politicians and the intellectuals and journalists who supply the carving knives. I am not speaking of the history we learned in school, a history subservient to our political leaders, from the much-admired Founding Fathers to the Presidents of recent years. I mean a history which is honest about the past. If we don’t know that history, then any President can stand up to the battery of microphones, declare that we must go to war, and we will have no basis for challenging him. He will say that the nation is in danger, that democracy and liberty are at stake, and that we must therefore send ships and planes to destroy our new enemy, and we will have no reason to disbelieve him. ...
An update from my good friends at Bad Attitudes:
Donald Rumsfeld is onto something when he suggests that opponents of Bush’s occupation of Iraq are at best appeasers like Chamberlain and at worst Vichy collaborators like Marshal Pétain. World War II parallels to Georgie’s Excellent Adventure actually do exist, although not where our Secretary of “Defense” finds them. They’re in Casablanca.

Doesn’t the Nazi, Major Strasser, remind you of Rummy himself? And of course to most of the world (all of the Arab world), Feldmarschall Rumsfeld’s Iraqi “terrorists” look strikingly like that heroic resistance fighter, Victor Laszlo.

--Speaking of Invidious Comparisons

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