Jan 13th, 2009 at 6:22 pm
A State Prosecutor for Bush?
Jonathan Zasloff speculates about the idea that an ambitious state attorney general might be able to find a way to indict Bush administration officials for crimes related to torture and so forth. My guess is that an effort along those lines would ultimately fail, but it might well be a useful exercise for the country. Among other things, it would make it difficult for the Obama administration to do the expedient thing and just kind of ignore the issue for a few months and hope everyone forgets about it.
30 Responses to “A State Prosecutor for Bush?”
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January 13th, 2009 at 6:30 pm
Obama isn’t dumb; he knows that once the power and intimidation that these clowns has recedes in the next few months, there will be so much coming out that it will be inevitable that someone will indict.
Then the shit storm begins, without his involvement at all.
January 13th, 2009 at 7:15 pm
Shame we don’t have Spitzer around anymore
January 13th, 2009 at 7:16 pm
The best chance anybody has of prosecuting a Bush administration official for torture is if one of them messes up and goes to a foreign country that is opposed to torture and doesn’t care about a US response. Or one willing to extradite him to a country that signed the ‘84 torture agreement. So unless John Yoo pays a visit to Venezuela or something, forget about it.
January 13th, 2009 at 7:22 pm
“Then the shit storm begins, without his involvement at all.”
Now that’s moral leadership we can believe in!
January 13th, 2009 at 7:33 pm
Re: The best chance anybody has of prosecuting a Bush administration official for torture is if one of them messes up and goes to a foreign country that is opposed to torture and doesn’t care about a US response.
This is a profoundly stupid idea. The above is the best way to gain lots and lots of sympathy for Bush himself, and the GOP in general. Having some foreign country attack a US president, even one as poorly regarded as Bush, would be a political disaster. Posts like the above betray the political intelligence of a sea slug.
Besides which, what foreign country (other than Iraq or Afghanistan) would have any right and proper jurisdiction over such matters? A country’s laws generally end at its borders.
January 13th, 2009 at 7:58 pm
Besides which, what foreign country (other than Iraq or Afghanistan) would have any right and proper jurisdiction over such matters? A country’s laws generally end at its borders.
That’s what Pinochet thought, too.
This article also suggests that German arrest warrants for the kidnapping and torture of an (innocent, FWIW) German citizen in Macedonia may be good throughout the EU.
January 13th, 2009 at 8:22 pm
Besides which, what foreign country (other than Iraq or Afghanistan) would have any right and proper jurisdiction over such matters? A country’s laws generally end at its borders.
http://www.mizzima.com/news/world/1110-us-recognizes-universal-jurisdiction-over-child-soldier-cases-.html
In addition, the U.S. Alien Tort Claims Act and the Torture Victims Protection Act confer civil jurisdiction over certain violations of international law anywhere in the world.
January 13th, 2009 at 8:33 pm
There is no doubt prosecution of US officials will happen in the following countries at least: Italy (already 20 CIA and State employees have been indicted in abstencia), Spain (very active and independent judges), Germany (one German was tortured so much he became insane)…
Trial of former government officials is a problem for any country. Trying another country’s former government official, not so much. I fully expect Bush, Cheney&Co to be prosecuted in Europe before Obama’s term ends.
January 13th, 2009 at 9:03 pm
Among other things, it would make it difficult for the Obama administration to do the expedient thing and just kind of ignore the issue
Wouldn’t a state-level effort make it much easier? “We feel it would be irresponsible to comment on an ongoing investigation,” refer questions to state AG, etc.
January 13th, 2009 at 9:49 pm
JonF – for what it’s worth I agree that the scenario is stupid, but I don’t see a politically viable domestic initiative to prosecute the Cheneys. Personally, I’d happily hand the whole crew over and sit back and watch the trial on YouTube. However I don’t see a way to pull off a domestic ( and truly just) prosecution without opening a can of worms the Obama administration needs like a hole in the head. Agenda priorities take precedence.
January 13th, 2009 at 10:38 pm
What blah said regarding the Torture Victim’s Protection Act. The irony there of course, would be that Bush would be sued under a law signed into law by his father.
January 13th, 2009 at 11:07 pm
Besides which, what foreign country (other than Iraq or Afghanistan) would have any right and proper jurisdiction over such matters?
Every country in the world has jurisdiction over such matters. War crimes, like piracy, are crimes of universal jurisdiction, and every country in the world can conceivably indict and try a captured war criminal.
A country’s laws generally end at its borders.
Funny, the US doesn’t seem to think so, as it claims the right to enforce its anti-terrorism laws around the world.
January 13th, 2009 at 11:11 pm
A country’s laws generally end at its borders.
Ex-Liberian president’s son convicted of torture
(CNN) — Federal jurors convicted the son of former Liberian president Charles Taylor Sr. of torture and conspiracy charges Thursday, said a spokeswoman for the U.S. attorney’s office in the southern district of Florida.
Charles “Chuckie” Taylor Jr., also known as Charles McArthur Emmanuel, was found guilty on one count of torture, one count of conspiracy to commit torture and one count of possession of a firearm during the commission of a violent crime, said Alicia Valle, special counsel to the U.S. attorney.
Taylor’s case, tried in Miami, Florida, was the first brought under a 1994 United States law saying those accused of committing torturous acts overseas can be tried in a U.S. federal court.
“Today’s conviction provides a measure of justice to those who were victimized by the reprehensible acts of Charles Taylor Jr. and his associates,” Attorney General Michael Mukasey said in a written statement. “It sends a powerful message to human rights violators around the world that, when we can, we will hold them fully accountable for their crimes.”
http://www.cnn.com/2008/CRIME/10/30/taylor.torture.verdict/index.html
January 13th, 2009 at 11:54 pm
Boy, I really don’t know about that.
January 14th, 2009 at 12:43 am
To add to the list, US citizens can be tried for statutory rape commmitted with minors outside the US. Think it’s intended to stop sex tourism or something.
At the very least, I’d like to see them all Kissinger-ized. Where they should have to consult with an attorney to travel abroad, so they don’t get extradited somewhere. Like I said, at the very least. I’d like to see most of them put away for a very long time.
Wonder if we could get the ICC involved.
January 14th, 2009 at 1:13 am
Great idea! The first year or two of every new President’s administration should be preoccupied with prosectuting the former Administration. President Bush missed this opportunity, as the Clinton team offered a wealth of targets.
Any time left over from this could be used to wipe out a paper trail that might be used by the next Administration.
Not only would this fund a lavish lifestyle for many attorneys, but it would go a long way to eliminating any possibility of good government for America.
After all, all the Obama Admiistration needs to do is fight a few wars, restart the economy, reform broken institutions (e.g., the State Department, DoD), and pass/implement long-needed reforms (e.g., health care). they will have lots of time for other things!
January 14th, 2009 at 2:13 am
Note that federal statutory law would allow Bush to remove the prosecution to federal court. See 28 USC 1442(a).
Seth Waxman and Trevor Morrison published an article in 2003 in the Yale Law Journal discussing this issue. (”What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause,” 112 Yale L.J. 2195.)
According to them, there’s an ill-defined “supremacy clause immunity” that limits state criminal prosecution of federal officers for official acts. The contours of this immunity are fairly vague. It’d be something like the qualified immunity we see in Bivens suits.
Then again, no state has ever indicted a president for an official act. Recall that Nixon v. Fitzgerald granted absolute civil immunity for Presidents’ official acts. Who knows if this carries to the state criminal law context. Do liberals really want to unleash Texas and Mississippi with that kind of power?
January 14th, 2009 at 7:45 am
I find it interesting the way recent discussion of reconciling the crimes – or even just the failures – of the Bush administrion has largely focused on the international question of torture. Domestic issues are largely articulated as righting the flagrant conflicts of interest among Bush appointees, addressing political withhunting at the Dept. of Justice, making a space for science to once again guide policy, etc. These are in some ways safe issues, focused on the day to day functioning of government rather than the grave implications of the past eight years for our national life. What about the incredible break-down of the separation of powers that Bush-Cheney provoked? The flagrant disregard for Congressional subpoenas and the toothless response of the Congress. This seems to me a tremendously important and root-cause issue — if not clearly prosecutable — to develop some national dialogue around. It’s airy, I know, and philisophical but crucial. And it would implicate lame Congressional Democrats as much as the White House and its minions; thereby making it a bilateral issue. This is perhaps not the stuff of actual criminal proceedings. However, a “truth and reconciliation”-like process focused on articulating both for and with the American public what exactly went wrong with the separation of powers under Bush would be an act of inspired leadership. It would also have the added benefit of not appearing vengeful and bogging the new administration down in criminal proceedings while not allowing the massive popular dissatisfaction of the AMerican people be swept under the run in order to “look forward.”
January 14th, 2009 at 10:26 am
An amazing article today on Torture and the neocon obsession with Jack Bauer today. A good read:
http://www.ihatewhatyoujustsaid.com/2009/01/13/yes-i-did-it/
January 14th, 2009 at 11:33 am
I’ll do it! As long as it’s OK with my Republican boss.
January 14th, 2009 at 1:13 pm
Matt,
Take a look at Vincent Bugliosi’s recent book. He examines the same meme, except with the State Prosecutor trying George W. Bush for murder due to Iraq War. The tone and substance for the most part is highly partisan. However the logic of the prosecution is fairly detailed. A posting to this comment board explaining the protocol for such an effort wouldn’t do the book or logic justice. That being said, the outline of how to prosecute the soon to be former POTUS is laid out pretty well in the book. http://www.amazon.com/Prosecution-George-W-Bush-Murder/dp/159315481X/ref=pd_bbs_sr_1?ie=UTF8&s=books&qid=1231956540&sr=8-1
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