By now, it is clear that the U.S. government is practically unable to seek accountability for crimes committed during the George W. Bush administration. These crimes include international war crimes and federal felony crimes, as well as violations of the Constitution—serious crimes that cannot be ignored.
It may be that our government is too full of politicians that have been tainted by their implicit involvement in these crimes, or it may be a failure of courage, or possibly corruption. But, whatever the reason, the only way that Americans will see full accountability is to set up their own, separate method of putting officials on trial when it is clear that they have committed serious crimes.
The Accountability Petition Amendment sets up a separate legal mechanism that bypasses the executive and legislative branches of government to put officials on trial. It would make prosecutions virtually unavoidable for anyone who contemplated these crimes in the future and would clean up the mess left by the Bush Administration without requiring the current one to take any action.
Many organizations are interested in bringing to justice U.S. government officials who sponsored torture. I don’t want to duplicate their efforts, but I do think that the Daily Kos community needs a place that centrally coordinates these efforts so that people here can find ways to take action. For that, please see more toward the end of this article.
What I have not seen (and the Internet is a pretty big place, so it could be out there) is an effort to change the Constitution and bring officials to trial directly by petition. This is what I want to see and I’m setting up the mechanism to bring it about. I would appreciate help, and I would be extremely happy to find a group that’s already working to this end that I could join.
What is the Accountability Petition Amendment?
It is an amendment to the U.S. Constitution that would empower a sufficiently large number of people to send a federal administration official to trial without the need for executive, legislative or grand jury action.
The exact wording of the amendment would be worked out by organizations proposing the change and submitted for approval to ratifying conventions. The amendment generally would allow the American people to hold federal administration officials accountable by either impeaching them (if they were in office) or indicting them (if they had already left office) for federal or international crimes, or for material violations of constitutional rights. The criteria for impeachment would be the same as if the House had impeached. The criteria for indictment would be that there was public evidence that they had committed a felony-level federal crime, a material breach of the Constitution, or an international war crime. A petition signed by a significant number of citizens would be required, a number large enough that it would not be used as a political tool, but small enough that real criminals could be indicted even if the federal government took no action on its own.
Why have an amendment?
We need an amendment because it is clear that neither Congress nor the current federal administration is prepared to hold former officials accountable for their obvious, serious, and publically-admitted crimes. The political calculation has trumped the legal one, to the detriment of the national interests:
- We are giving up the rule of law, which means that public policy will now be decided by whoever rules, not by what the democratic process has determined to be in the best interests of the country.
- People worldwide find us to be hypocrites. The substantial goodwill that the U.S. accumulated internationally by careful work over many decades on behalf of human rights has evaporated because we can no longer be trusted to look out for human rights if it doesn’t suit our purpose.
- The United States is in violation of its treaty obligations to prosecute known acts of torture.
- It is by no means certain that the U.S. will always be the preeminent power. At current growth rates we may have a second-rate economy and a second-class military within a few decades. At that point, we would have no standing to go before the U.N. or the World Court and plead our case if another country decided to torture our citizens.
Why not use an Article V process?
The normal channels for a constitutional amendment are plugged up with politicians. Article V calls for either (1) a vote of both houses of Congress to send an amendment to the states or (2) application by the legislatures for a constitutional convention. In either case, this requires super-majorities and then the resulting proposed amendment must be passed by three-quarters of the legislatures. Since there is nothing about this amendment that is good for politicians there is no incentive for any of them to push such an amendment through. It is possible that an effort could be mounted in enough states to get two-thirds of the legislatures to demand a convention, but getting this many politicians in this many states to approve an amendment requires that it be totally uncontroversial.
What would the direct amendment process look like?
The direct amendment process would look like the original constitutional process. A group of people in each state would form an organization to choose delegates to a national meeting with the purpose of drawing up the Accountability Petition Amendment. That group would draw up an amendment while corresponding with the members of their parent organizations. The final draft of this would be sent to conventions in each state for ratification. Those conventions would be open to any registered voter in the state in which they were held. Participation would be encouraged. Each state convention would vote yea or nay on the question of whether to adopt the amendment. If two-thirds of the state conventions voted to adopt the amendment, then it would be passed.
Subsequent to that, the parent organization would look to gathering sufficient signatures to petition to indict any official who fit the criteria of the amendment. Generally, we expect that any officer of the government during the Bush Administration who knew about the international crime of torture, was in a position to do something about it, and either did nothing or actively supported breaking the law would probably go on trial because there would be enough signatures to demand it. Other crimes, such as spying on Americans, which are felony violations of federal law, would also likely qualify.
Is a direct amendment valid?
The Constitution that we use was created by exactly the process outlined above. It did not derive from previous authority. There was no vote to amend the Articles of Confederation to establish a new government. The people who wrote it did not have a mandate to write one, they took that upon themselves. The resulting Constitution gets its power strictly from the fact that it was clear that the majority of people wanted it and that since then the vast majority of the people in the country support it. Any process that produces a clear result that shows that the overwhelming majority of the American people want this to be part of the Constitution carries exactly the same legal force that the Constitution itself carries.
Won’t it take too long or be too much trouble?
No. This is a deliberately plodding course to get there. The primary goal is to get prosecutions for significant federal and international crimes. People in the Bush Administration abused executive privilege and committed serious federal and international crimes. The very nature of this public and excruciatingly slow process is designed to force the White House to see that there is no political benefit to avoiding these prosecutions. If the system can be forced to work as-is, then there is no need for an amendment. Properly done, a slow, deliberate process will scare the bejesus out of politicians and possibly motivate them to work harder on investigations and ensure that guilty parties go on trial.
This process should make it clear to the White House that they cannot escape repeated news cycles on the issue by “putting the issue to rest”. It won’t sleep. Not as long as there are people building public meetings and soliciting the public to get involved.
Why not forget about these crimes and just make things right for the future?
First of all, what they did is illegal. Pardoning them would only be appropriate if they were suffering a miscarriage of justice, which they clearly are not. We have both a moral duty and pragmatic reasons for making sure that justice is served. Letting them go doesn’t serve justice and is therefore against the interests of the United States.
Second, these were particularly horrible and damaging crimes. Bush Administration officials:
- Caused people in custody to be tortured, sometimes resulting in deaths.
- Invaded a country in order to bring about gains for private individuals, under the guise of furthering the security interests of the country. As a result of this war, hundreds of thousands of people were killed and an entire country devastated. It also caused horrific bodily harm to many thousands of people.
- Misused the security apparatus of the government to spy on Americans in violation of the Fourth Amendment and general expectations of privacy.
- With the aid of Congress, violated Article I, Section 9, Clause 2 of the Constitution.
If we ignore these crimes because we have a “good” President who doesn’t have people tortured and only continues an unjust war, then what will happen when we have a “bad” President? Some of these crimes are being preserved under the current administration. The only effective way to curtail them is to send those responsible to trial.
Third, the kind of system this created takes away liberty in ways that threaten to become permanent. It used to be that a bunch of revolutionaries could go off and create a free society out beyond the reach of tyranny. But, with the perfection of technology, that is no longer possible. We will soon have the means (if we don’t already) to obtain perfect obedience of citizens and the means to know perfectly what they do. You will only get freedom in such a system if you have perfect laws. Executed by perfect people. Or, at least with good enough restraints on imperfect people they aren’t tempted to corruption. George Bush took away those restraints. Unless we get them back now, freedom as we know it is probably gone for good.
Fourth, we are setting a precedent. The precedent we set will be important as we go into a future that is not dominated by the United States. Within a decade or two, the United States will not be the dominant economic power and therefore will not be able to maintain the dominant military presence. At some point we may need to prevent other countries from taking Americans prisoner and torturing them. We will have a very weak position to go to the U.N. or the World Court and ask for justice if we do not set the precedent that countries are not allowed to torture for their self-protection.
Wouldn’t Bush Administration officials just escape trials through pardons or loopholes?
No. A presidential pardon would have no force. No statute of limitations would apply. A change to the Constitution trumps federal law and anything previously in the Constitution.
On the other hand, no document, law or procedure can take away fundamental rights. Human rights, such as the right to privacy, adhere to the individual, not the document. As a human, you have a right to privacy, although others (including a government) may refuse to recognize it. But, this process does not take away individual rights. This process doesn’t provide a mechanism to torture one of these officials, keep them in prison indefinitely without trial, or otherwise violate their human rights at the whim of a majority of the people.
Call to Action
I’m setting up a community to coordinate action on direct petitions for trials. This community, the Accountability Petition Amendment Coordinators community, is open to anyone who wants action. Tired of waiting for the Obama Administration to put obviously guilty parties on trial? Come join us. Tired of waiting for Congress to stand up to obviously criminal behavior by administration officials? Come join us. Despair of seeing the rule of law restored? Come join us. Want a legal way to take out your frustrations in a constructive way? Come join us. Memberships are by “invitation”, but the invitation will be extended to anyone in the Daily Kos community (and beyond) who wants to take action to put top-level Bush Administration officials on trial. Send me a request at libthink@yahoo.com and I will give you access.
This can also act as a centralized place for anyone in the Daily Kos community to get and stay in touch with other organizations that want to see justice done in these fundamental areas, but it is not an official Daily Kos community and I disclaim any direct affiliation. But, if you are a member of an organization with an interest, please join us so we can find out what’s going on across the board.
It’s clear that the Obama Administration has no plans to actively pursue criminal indictments of officials that ordered torture, let alone those that spied on us in violation of FISA and our Constitutional rights. It’s clear that Congress has no focused intent to see that these criminals brought to justice. Aren’t you tired of waiting?
Update: BTW, the full text of the poll question (cut off by the website) is:
If the Constitution allowed it and you are an American citizen at least 18 years of age, would you sign a petition to put any officer in the recent Bush Administration on trial if there was public evidence that they had materially participated in using torture on American prisoners?