President-Elect Barack Obama said that immediately upon becoming president - if he were elected - he would have his attorney general investigate whether alleged war crimes were "just stupid policies or very serious and egregious crimes."
Glenn Greenwald (with Bill Moyers last night) has urged the establishment of a commission with unlimited (or absolute?) subpoena power, along the lines of a 9/11 truth commission but capable of enforcement with the conclusions of its findings.
I have tried to raise this question with Mr.Greenwald, but to no avail: Is the Hague International Criminal Court not the proper venue for the discovery of international terrorism or international war crimes perpetrated by States?
I pose this question with a desperate sense that Gitmo detainees must be disposed fairly, and where they are culpable or involved in planning, plotting, acting or enabling terrorism, they must be imprisoned and their acts preempted. Preventive detention is the only way to interdict
heinous acts. This runs contrary to our system of justice where evidence for conviction requires the evidence of heinous acts.
But, there is no question that the progressive community (or our "Get Democrats Elected" Community) backs preemption of terrorism and interdiction of those accused as a necessary, and quite viable, national legal strategy.
But it is not enough for the President of United States to say so. Bush's own Military Order of Novermber 13, 2001, for the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism needs to revised in light of the abject failure of the Military Commissions system.
In fact, it is insufficient for us to continue to live with the resolution of a very flawed, uninterested and unpopular President's determination.
For background, from the International Criminal Court website:
"The International Criminal Court was established by the Rome Statute of the International Criminal Court, so called because it was adopted in Rome, Italy on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International
Criminal Court. The Rome Statute is an international treaty, binding only on those States which formally express their consent to be bound by its provisions. These States then become "Parties" to the Statute. In accordance with its terms, the Statute entered into force on 1 July 2002,
once 60 States had become Parties. Today, 106 States have become Parties to the Statute. The States Parties meet in the Assembly of States Parties which is the management oversight and legislative body of the Court.
Following the adoption of the Rome Statute, the United Nations convened the Preparatory Commission for the International Criminal Court. As with the Rome Conference, all States were invited to participate in the Preparatory Commission. Among its achievements, the Preparatory Commission reached consensus on the Rules of Procedure and Evidence and
the Elements of Crimes. These two texts were subsequently adopted by the Assembly of States Parties. Together with the Rome Statute and the Regulations of the Court adopted by the judges, they comprise the Court’s basic legal texts, setting out its structure, jurisdiction and functions."
And, further, regarding its purpose:
"The International Criminal Court (ICC) is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes. The ICC is based on a treaty, joined by 108 countries.
The ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility.
In addition, the ICC only tries those accused of the gravest crimes. In all of its activities, the ICC observes the highest standards of fairness and due process. The jurisdiction and functioning of the ICC are governed by the Rome Statute."
[my emphasis]
Incredibly, the United States is not a signatory, having never signed the Treaty of Rome. But, under the conditions set by George W.Bush himself with the emergency powers expressed in the Military Order of November 13th 2001, Presidential power for the detention and disposition of terror suspects is absolute.
I contend that, through this order, our justice system was subverted, our legislative bodies in the Congress have been compromised or disfigured by domestic threats, and the executive powers of a new administration will be incapable of either factfinding or renunciation of these selfsame powers without the simple exercise of just findings from an internationally-respected court that remains judicially uncompromised and objective.
I have mulled over the misgivings of Keith Olbermann and John Dean on November 28th,
and I think that it is vital that we get extra legal help. What is really chilling is that there is no end in sight, for international terrorism is on the rise as clearly evidenced by the recent terrorism in Mumbai.
Here is a transcription that points to some of the more frustrating conclusions:
OLBERMANN: This is not that complicated.
A, the Bush administration has acknowledged it waterboarded some terror detainees.
B, even John McCain acknowledged that waterboarding is torture, therefore
C, the Bush administration tortured people.
But in a flabbergasting irony, because the administration cannot accept that irrefutable chain of logic, the president is not believed likely to issue sweeping pardons for those who authorized or did the torturing.
On the other hand, the Obama administration may not prosecute them. Our third story on the COUNTDOWN, our nightly question to the president elect, what do we do now, when it comes to torture?
According to the "Wall Street Journal," White House officials believe the blanket pardons are quote, "unnecessary," citing what have come to be known as the torture memos. Written by their own Justice Department, the documents contained language flouting international treaties and federal law forbidding torture to permit tactics just shy of homicide.
In turn, they provided broad legal authority and cover for some of the atrocities carried out at Gitmo, for example.
Further, some former administration officials have argued that a pardon for post 9/11 activities would be tantamount to an admission of wrongdoing.
As for what President-Elect Obama will do as president, he's not expected to pursue criminal charges or take high level investigations in the absence of specific new evidence, but he is said to consider a 9/11-style commission, eventually, making many of the findings on torture public. All quote, "bad ideas" says former assistant attorney general from 2003 to 2004 Jack Goldsmith, himself a possible candidate for prosecution if there is any.
Writing today in the "Washington Post," quote, "They would bring little benefit and further weaken the Justice Department
and the CIA in ways that would compromise our security."
Time now to call in John Dean, White House counsel in the Nixon administration, columnist now at findlaw.com, and also the author of "Broken Government" and "Worse than Watergate." Good evening, John.
JOHN DEAN, NIXON WHITE HOUSE COUNSEL: Good evening, Keith.
OLBERMANN: Are you surprised by the president-elect's idea of this commission? Does it seem that it's treating this issue a little academically?
DEAN: Frankly, I am. I'm not sure it's academic the way they're thinking about it. It's clearly contrary to what we talked about earlier in a prior broadcasts how he told Will Bunch earlier this year, that immediately upon becoming president if he were elected, he would have his attorney general investigate this very question as to whether these war crimes are just stupid policies or very serious and egregious crimes.
A commission is far away from that. A commission is passing the buck. And I've got to tell you also, Keith, in the unraveling of Watergate, we had many high level discussions about how to make it all go away without anybody having liability. We considered many times a commission.
OLBERMANN: I saw that coming down Broadway with its doors open. Say Obama were to pursue some sort of prosecution or high level investigation as we had discussed, as he had said as candidate Obama to our friend Will Bunch, are there legitimate downsides to this? Is there anything here in the criticism by Mr. Goldsmith?
DEAN: Well, I think the biggest downside, potentially is the fact given the timing, if he went early, it could change the atmosphere in Washington. He has a lot of things he needs to do before he turns to an issue like this, like the economy, Iraq, and that could make the atmosphere very difficult. That's what he has to consider and that's what he is considering in talking about a commission.
OLBERMANN: As for President Bush and his reported conclusion about no sweeping, preemptive pardons, is he do you think he's playing a game of chicken or do you think he thinks there was no crime here?
DEAN: I suspect the latter. I read a lot on the Internet in the last few days about this where there were very heated discussions about how he should be prosecuting these people and just nailing them because they have obviously committed very serious war crimes. What everyone is forgetting is how much Bush has already done with Congress with the republicans control in two pieces of legislation. One was the Detainee Treatment Act of '05 and then again in the Military Commissions Act. Both of those, Keith, seriously narrow the criminal liability of anybody that was involved in these. And, indeed, they let them rely statutorily on these Department of Justice memos that John Yoo wrote. So this is a very difficult thing - to prosecute these people.
OLBERMANN: And the cliched $64,000 question: I know the idea of prosecuting a president after their presidency is a black hole,
but is Bush himself in trouble, even theoretically?
DEAN: Not really. I really think it's very remote. Sadly, because he is up to his eyeballs as is Cheney in all this, and they probably are directly involved in what could be a very clear conspiracy, it's not going to happen. It's just another bit of evidence that Richard Nixon might have been right, that when a president does it, it's not illegal. And that's kind of a sad commentary.
OLBERMANN: Well, now that I have hours to contemplate what life is like with a Nixon-appointed Watergate commission, I will thank you, as always. John Dean, the author of "Worse than Watergate" and "Broken Government."
Thanks for your time, have a great Thanksgiving, John.
DEAN: Thanks, Keith.
Any "truth commission," with or without subpoena "teeth," will be totally insufficient for the restoration of a normal state of affairs. Our government is not set up to legislate its way out of a Presidentially-mandated "state of national emergency."
We continue to remain, legally, and for all practical purposes, in a continuing state of emergency and surveillance, for the Bush Military Order of November 13th 2001 cannot be redacted without subjecting the President's resolution to review by the International Criminal Court in The Hague, Belgium.
Moreover, the President-Elect dares not simply renounce these powers, for they are pertinent, timely, and essentially necessary for our national security. Saying that it's a "Catch-22" situation doesn't begin to address the perplexing array of self-serving new paradigms established by the worst President who has ever occupied the White House. But there is no need for our heads to explode.
Simple resolution and final judgment of Bush/Cheney in a helpful little ICC investigation of terrorism (which would clearly expose Bush/Cheney torture and genocide) might begin to set things straight, not just for us, but for the rest of the civilized world and the signatories to the Treaty of Rome:
A
Afghanistan
Albania
Andorra
Antigua and Barbuda
Argentina
Australia
Austria
B
Barbados
Belgium
Belize
Benin
Bolivia
Bosnia and Herzegovina
Botswana
Brazil
Bulgaria
Burkina Faso
Burundi
C
Cambodia
Canada
Central African Republic
Chad
Colombia
Comoros
Congo
Cook Islands
Costa Rica
Croatia
Cyprus
D
Democratic Republic of the Congo
Denmark
Djibouti
Dominica
Dominican Republic
E
Ecuador
Estonia
F
Fiji
Finland
France
G
Gabon
Gambia
Georgia
Germany
Ghana
Greece
Guinea
Guyana
H
Honduras
Hungary
I
Iceland
Ireland
Italy
J
Japan
Jordan
K
Kenya
L
Latvia
Lesotho
Liberia
Liechtenstein
Lithuania
Luxembourg
M
Madagascar
Malawi
Mali
Malta
Marshall Islands
Mauritius
Mexico
Mongolia
Montenegro
N
Namibia
Nauru
Netherlands
New Zealand
Niger
Nigeria
Norway
P
Panama
Paraguay
Peru
Poland
Portugal
R
Republic of Korea
Romania
S
Saint Kitts and Nevis
Saint Vincent and the Grenadines
Samoa
San Marino
Senegal
Serbia
Sierra Leone
Slovakia
Slovenia
South Africa
Spain
Surinam
Sweden
Switzerland
T
Tajikistan
The Former Yugoslav Republic of Macedonia
Timor-Leste
Trinidad and Tobago
U
Uganda
United Kingdom
United Republic of Tanzania
Uruguay
V
Venezuela
Z
Zambia
note: ht: "heathlander"; Canada, Mexico, Germany, France & Ireland signed.
ps: If I wasn't clear, I don't think that the ICC will be constrained by some self-serving comic Moliere-style dicta issued by lightweight extras from a Gilbert & Sullivan opera. The ICC may even send the idiot lawyers in the chorus to jail for malpractice.
Forget the judgment of history: If Bush wants to be remembered as having truly sacrificed himself and the reputation of his administration for acting autocratically for the greater safety of the nation, perhaps the ICC can oblige him and throw his ass in jail now with some of his hand-picked, co-opted Regent University co-conspirators who just couldn't say, "No!"
As always, f*** you, Alberto Gonzalez, John Yoo, et al!
As far as Iraq is concerned, the IPA might ask for UN peacekeepers to come in and expatriate our military forces for us if Obama hasn't the will or the political cojones for it. But that's enough for tonight.
UPDATED: with the following response from ondelette at Glenn Greenwald's blog on Salon... (a free subscription may be necessary - I always read Glenn - it seems that I should have read him first.)
I don't think the tortures and detentions will go before the International Criminal Court in the Hague very quickly, it is possible it will happen, but that requires some intervention from outside the U.S. Last summer, we requested an investigation from the ICC (some of those signing the letter were regular commenters here), and they replied, after investigating what we had written, that they lacked jurisdiction. In order to have jurisdiction, one of three things needs to happen:
- The perpetrators must be from a country that has acceded or ratified the Rome Statute,
- The alleged crimes must have happened on the territory of a country which has acceded or ratified the statute,
- The U.N. Security Council has referred the case to the ICC under its Chapter VII powers.
If President Obama were to sign the Rome Statute on his first day in office, and the Congress were to ratify it the next, it still would not be able to prosecute crimes prior to the ratification.
The two contexts that are the most possible for ICC intervention, as far as I can tell, are:
- Afghanistan brings charges for crimes that occurred on its soil. Afghanistan acceded to the Rome Statute on February 10, 2003. Events prior to that date would not apply, which includes at least many of the homicides that were documented there originally by Carlotta Gall. But subsequent violations could be the subject of court action. Afghanistan would have to not prosecute the cases themselves.
- One other that I mentioned before is convoluted, but the following: A country that is offended by the actions of the U.S. in the so called "war on terror" could submit a resolution to the U.N. Security Council during the Obama administration. Likely candidates would be Libya or Borkina Faso, since they will each take a seat on the Council in 2009, or 2010. That would put the U.S. in the uncomfortable position of either vetoing the resolution, which if it is narrowly crafted would be a vote in front of the entire world in favor of torture, or they could vote for it or abstain, allowing the resolution to go through unless someone else opposes it.
Prosecution for aggression is not possible in the ICC. It may be added by a commission that is scheduled to convene in 2010 to discuss how it would be structured as a crime, but it is not a prosecutable crime by the ICC under the Rome Statute currently (it is a crime listed by it).
The ICC by 2006 had investigated 140+ complaints against Britain in the Iraq War, Britain is a signatory, but not Iraq. They found that the allegations did not rise to the level of systematic or massive and widespread violations (the allegations were for crimes against humanity).