December 2008 Atlantic Monthly
source: http://www.harpers.org/archive/2008/12/0082303

Justice after Bush:
Prosecuting an Outlaw Administration

By Scott Horton

I. The Crimes

Americans may wish to avoid what is necessary. We may believe that concerns about presidential lawbreaking are naive. That all presidents commit crimes. We may pretend that George W. Bush and his senior officers could not have committed crimes significantly worse than those of their predecessors. We may fear what it would mean to acknowledge such crimes, much less to punish them. But avoiding this task, simply “moving on,” is not possible.

This administration did more than commit crimes. It waged war against the law itself. It transformed the Justice Department into a vehicle for voter suppression, and it also summarily dismissed the U.S. attorneys who attempted to investigate its wrongdoing. It issued wartime contracts to substandard vendors with inside connections, and it also defunded efforts to police their performance. It spied on church groups and political protesters, and it also introduced a sweeping surveillance program that was so clearly illegal that virtually the entire senior echelon of the Justice Department threatened to (but did not in fact) tender their resignations over it. It waged an illegal and disastrous war, and it did so by falsely representing to Congress and to the American public nearly every piece of intelligence it had on Iraq. And through it all, as if to underscore its contempt for any authority but its own, the administration issued more than a hundred carefully crafted “signing statements” that raised pervasive doubt about whether the president would even accede to bills that he himself had signed into law.

No prior administration has been so systematically or so brazenly lawless. Yet it is no simple matter to prosecute a former president or his senior officers. There is no precedent for such a prosecution, and even if there was, the very breadth and audacity of the administration’s activities would make the process so complex as to defy systems of justice far less fragmented than our own. But that only means choices must be made. Indeed, in weighing the enormity of the administration’s transgressions against the realistic prospect of justice, it is possible to determine not only the crime that calls most clearly for prosecution but also the crime that is most likely to be successfully prosecuted. In both cases, that crime is torture.

There can be no doubt that torture is illegal. There is no wartime exception for torture, nor is there an exception for prisoners or “enemy combatants,” nor is there an exception for “enhanced” methods. The authors of the Constitution forbade “cruel and unusual punishment,” the details of that prohibition were made explicit in the Geneva Conventions (“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever”), and that definition has in turn become subject to U.S. enforcement through the Uniform Code of Military Justice, the U.S. Criminal Code, and several acts of Congress.  (footnote 1)

Finally, there can be no doubt that the administration was aware of the potential criminality of these acts. In January 2002, White House lawyers began generating a series of memos outlining the administration’s motivation for torturing. They claimed that “the war against terrorism is a new kind of war” requiring an enhanced “ability to quickly obtain information from captured terrorists” and that “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” The legal term for such contemplation is mens rea, or “guilty mind,” and it is an important consideration in criminal trials. Which is perhaps the reason that John Ashcroft—when he, Dick Che ney, Colin Powell, Condoleezza Rice, Donald Rumsfeld, and George Tenet gathered at the White House in 2002 to formally approve the application of specific torture methods—asked the assembled, “Why are we talking about this in the White House? History will not judge this kindly.” (footnote 2)

II. The Consequences of Inaction

The accuracy of Ashcroft’s prediction remains to be determined. The United States does, in fact, have a long history of prosecuting torturers, but the punishments have varied considerably. In 1902, U.S. Army Captain Edwin Glenn confessed to and was court- martialed for using “the water cure” on Filipinos as part of the U.S. prosecution of the Spanish-American War. He was required to pay a fifty-dollar fine. And in 1926, when the Mississippi Supreme Court declared waterboarding to be torture and overturned the conviction of a man who had confessed to another crime under its application, the police who had elicited the confession went entirely unpunished. In other circumstances, though, the consequences have been more significant. In 1983, an east Texas sheriff named James Parker was convicted of waterboarding six men in order to coerce confessions. He was sentenced to ten years in federal prison. And when American prosecutors convicted Japanese officials at the end of World War II of war crimes that included waterboarding, the sentence sought, and obtained in some of the cases, was death. Which is not to say that administration officials will or should face similarly dire sanction. But such consequences are a measure of the gravity of the crime.

Waterboarding is far from the worst that detainees have suffered under U.S. supervision. Its use is especially worthy of note, however, because it is universally understood that 1) the administration authorized waterboarding, and 2) waterboarding is a serious crime.  (footnote 3)

Open criminality is a cancer on democracy. It implicates all who know of the conduct and fail to act. Such compliance presents a practical crisis, in that a government that is allowed to torture will inevitably transgress other legal limits. But it also presents an existential political crisis. Many democracies have simply collapsed as the people permitted their leaders to abandon the rule of law in the face of alleged external threats. The turn to torture was rapid, for instance, in Argentina at the time of the Dirty War and in Chile after the American-directed coup against Salvador Allende. In both cases, that turn had little to do with a perceived benefit from the use of torture in interrogation. To the contrary, the very criminality of the act had a talismanic significance. It asserted the primacy of the will of the torturer. It made the claim, for all to accept or reject, that the ruler was the law. Such a claim is, of course, intolerable to democracy, which presupposes, as Thomas Paine wrote, that “the law ought to be King; and there ought to be no other.”

Reasserting the rule of law is no simple matter. A new administration may—or may not—bring an end to open torture in the United States, but it will not bring an end to our knowledge and acceptance of what has already taken place. If the people wish to maintain sovereignty, they must also reclaim responsibility for the actions taken in their name. As of yet, they have not. Pursuing the Bush Administration for crimes long known to the public may amount to a kind of hypocrisy, but it is a necessary hypocrisy. The alternative, simply doing nothing, not only ratifies torture; it ratifies the failure of the people to control the actions of their government.  (footnote 4)

III. Possible Methods of Sanction

Torture is a war crime, and war crimes present an unusual legal challenge. They can be prosecuted domestically, like any other crime. But because they are war crimes, they also are subject to enforcement by all nations, under a well-established principle of universal jurisdiction. Making matters more complex, such crimes can be prosecuted not only in standing courts here or abroad but also in domestic or international ad hoc courts—like those convened for the Nuremberg trials—designed to deal with specific political concerns. Various combinations are suited to different situations:

International Criminal Tribunal

In recent years, nations have joined together on an ad hoc basis, often with U.S. support or under the auspices of the United Nations, to prosecute military and political figures from Cambodia, Rwanda, West Africa, and the former Yugoslavia. Many of these tribunals are still in progress and thus far have achieved mixed results. But they have by and large followed a predictable pattern. Rather than attempting to prosecute all potential war criminals, they have instead focused on those in positions of authority whose action or inaction had broad consequences. And they have shown a particular concern for offenses committed systematically against persons outside of combat, who in many cases have been disarmed and taken prisoner.

The precedent for all of these tribunals was the Nuremberg trials, convened at the end of World War II. Under U.S. leadership, the Allies prosecuted not only leaders of the Nazi Party but also industrialists, doctors, and prison commandants. The Americans and Soviets also wanted to prosecute the people who had created the legal framework for the Nazi regime, but British and French leaders objected. Consequently, the United States, acting on its own, convened a separate Nuremberg tribunal to try lawyers, judges, and legal policymakers. In doing so, it established the principle that policymakers who overrode the mandatory prohibitions of international law against harming prisoners in wartime could be prosecuted as war criminals, no matter how many internal memos they had written to the contrary.

The International Criminal Court, headquartered in the Netherlands, was created in 1998 to provide a permanent version of such a tribunal. The ICC bears many traces of U.S. authorship, and indeed its establishment, in one form or another, was urged by presidents from Thomas Jefferson to Bill Clinton. But American conservatives, opposing what they saw as a limitation on American sovereignty, have blocked the U.S. from joining the 108 other nations that have signed the Court’s foundational treaty. And even the institution’s strongest advocates agree that, although the ICC is suited to prosecuting political leaders in minor states, it was never intended as a check on the great powers. In fact, the ICC’s success depends upon its gaining the support of those great powers.

As things stand it would be legally very difficult and politically impossible for the ICC to indict American policymakers for war crimes, and even more difficult for an ad hoc group of nations to do so. Moreover, any such effort would probably provoke a public-opinion backlash within the United States.

Foreign Courts

Most crimes are subject to sanction on the basis of territoriality—that is, the crime is viewed as having occurred on the soil of one particular state, and that state has the right to enforce its criminal law by prosecuting the crime or not. War crimes, however, are not subject to this territorial limitation. Any nation that has a reasonable relationship to the crime can prosecute the alleged criminal—the state where the offense occurred, any of the warring states, or a state whose nationals were harmed or mistreated. Consequently, many other nations have standing, under international law, to pursue war-crimes prosecutions against U.S. citizens.

The example of Augusto Pinochet shows how such an approach might unfold. In 1998, the onetime dictator of Chile, then eighty-two, was seized in Britain on a Spanish arrest warrant. He was charged with several crimes stemming from his seventeen years in power—including torture, illegal detention, and forced disappearances—and placed under house arrest in a Surrey mansion while diplomats from all three countries debated the next steps. After several months of complex legal proceedings, the British determined that Pinochet was medically unfit to stand trial and returned him to Chile, thus maintaining their claim to jurisdiction without actually pursuing a prosecution. Even this attenuated process would be difficult to replicate with an American political figure, however. Most nations that have a record of prosecuting war crimes are close allies of the United States and would be justifiably concerned about the practicalities of maintaining positive defense relations with the world’s preeminent power. Moreover, the United States—like Chile— almost certainly would not extradite a former official for such purposes.

At present, however, one criminal prosecution is already pending. It arises from the abduction in Italy, under the CIA’s “extraordinary rendition” program, of an Egyptian cleric named Hassan Mustafa Osama Nasr. Twenty-six Americans—including diplomats, intelligence officers, and a military attaché—face criminal charges in absentia in the case. For the Americans the abduction was a sensitive national- security operation. But for the Italian criminal-justice authorities it was simply the armed assault and kidnapping of a resident alien. Even if, as widely expected, the case produces convictions, the American operatives will not be extradited to Italy. They will, however, have difficulties traveling outside the United States.

Even this mild form of sanction, however, fails to address the domestic political problem. True justice cannot be compelled from without. If the United States wishes to demonstrate to the world, and to itself, that its abdication of human-rights principles was an anomaly, it will have to do so under its own auspices.

Domestic Courts

Most violations of the laws of war are punished through a military court system. Under the Uniform Code of Military Justice, which provides the tools for enforcement of the laws of war in the United States, civilians as well as uniformed service members may be prosecuted, though such prosecutions are rare and raise significant constitutional issues. Moreover, such systems are fine for punishing errant soldiers, but they seldom function properly when the culpable person is far up the chain of command. This is largely because military justice is not concerned exclusively with justice; it is also concerned with upholding command authority. There is little likelihood, therefore, that policymakers would be prosecuted before a court-martial.

Torture is forbidden by federal law as well. (footnote 5)

Could a federal prosecutor take it upon himself to enforce that law? Alberto Gonzales expressed concern in a 2002 memo that a prosecutor might display sufficient independence to do just that. But thus far none has. The scandal surrounding the dismissal of nine U.S. attorneys in 2006 helps explain why: the Bush Administration has maintained an unprecedentedly tight rein on its prosecutors, acting harshly when they depart from the prescribed political path. Indeed, so many high-level figures at Justice were involved in creating the legal mechanism for torture that the Justice Department has effectively disqualified itself as an investigative vehicle, even under a new administration.

Another major obstacle to domestic prosecution will be pardons. The exercise of a presidential pardon to protect war criminals would violate international law and would not be respected outside the territory of the United States. Under the Constitution, however, Bush’s pardon power is nonetheless nearly absolute. Those advocating a pardon hope that it would put an end to questions about criminal conduct, but historical experience suggests that a pardon might have just the opposite effect. It would implicitly concede that serious crimes were in fact committed; the public would not necessarily reject a pardon, but it might well insist on full disclosure of what was done; and the president’s political party likely would pay a significant price for all of this, as Republicans experienced in the election following Gerald Ford’s decision to pardon Richard Nixon.

Pardons would have another unintended effect. Under well-established notions of international law, the fact that a state attempts to immunize officeholders from prosecution (such as by the issuance of a presidential pardon) would boomerang by actually conferring on other states the jurisdiction to prosecute.

Commission of Inquiry

In recent decades, the commission of inquiry, often in the form of a “truth and reconciliation commission,” has established itself as the preferred means of approaching politically sensitive issues such as war crimes while avoiding the destabilization that might result from direct prosecutions. In Argentina, Chile, East Timor, Peru, and South Africa, newly elected leaders feared that the criminal prosecution of their predecessors would wreck the fragile political consensus that had been used to establish both peace and a legitimate democracy. A commission of inquiry allowed these countries to move toward accountability in a slow but deliberate way. In some cases, a bargain was struck under which the truth about past misconduct was divulged in exchange for a pardon, on the premise that establishing a record of historical truth was more important to democracy than punishing individual malefactors. In other cases, however, the commission’s fact-finding process gradually built a public consensus that prosecutorial action was needed. In Peru and Chile, prosecutions occurred even after comprehensive pardons had been granted, as the courts relied on international-law concepts to disregard those pardons.

These commissions have not always performed as their authors intended them to. For instance, it was anticipated that the South African commission would widely disseminate pardons in exchange for more detailed accounts of homicides and abuse under apartheid. In the end, however, very few such pardons were even sought, since many witnesses simply counted on a sentiment of general amnesty to see them through. Such commissions also shift the balance of historical memory, which usually favors those who hold power, by ensuring that the accounts of victims are carefully recorded. Often this occurs by taking the victim’s testimony in a public setting. In Argentina, Chile, and South Africa, the commission process served one function especially well: the public was educated about the wretched practices of the prior regime, and demands for a clear separation from these practices—often including the rehabilitation of victims and the punishment of perpetrators—changed the landscape of public opinion.

IV. A Two-part Solution

Given the political situation in the United States, it seems clear that the last option is the best. Although “truth and reconciliation” may strike many people as somehow too exotic a process for the United States, investigative commissions in fact have a long history here that includes the Warren Commission, which was established in 1963 to investigate the assassination of John Kennedy, and the Kerner Commission, which was established in 1967 to examine the causes of race riots in the United States. Such investigations have had a mixed record of success, but they are the best means available to the U.S. political system for investigating issues that raise broad public concern but cannot be satisfactorily delved into by such established bodies as the FBI or a congressional oversight committee.

Investigative commissions can provide truth. They can establish an important record. They can reaffirm important taboos. But they cannot provide justice. For that they are simply a first step. The second step, which I will discuss only briefly, is a formal prosecution, most likely by an executive- appointed special prosecutor. In this model—call it “commission plus special prosecutor”—the commission would find the facts, weigh them, and, if the facts warrant, make a formal recommendation for the appointment of a prosecutor, identifying the matters that necessitate further investigation. Even if the commission were to determine that no prosecutable crimes had occurred—and, given the legal complexities of such an undertaking, such a finding is possible—it would perform the absolutely necessary function of educating the public. If, on the other hand, the commission were to determine that criminal investigation was appropriate, it already would have created essential public support for such action.

From what source would the commission draw its authority? The most obvious place would be the executive branch itself. The next president could appoint a commission of inquiry with the stroke of a pen, and such a commission would have many strengths. It could be created quickly; it would answer to one master; and, since it would be created with the authority of the president, it could demand the cooperation of government actors and access to classified documents. Gerald Ford, for instance, created the Rockefeller Commission in 1975 to examine allegations of domestic spying, and it put on record a series of tawdry CIA operations and helped to impose several congressional restraints on domestic action by the agency. The problem with presidential commissions is that they can easily be accused of covering up for previous administration (footnote 6) or, conversely, of seeking “victor’s justice.”  (footnote 7)

The alternative is a hybrid—an executive-legislative commission that would be created by an act of Congress but would draw also on the authority of the president. This alternative typically involves an elaborate process for the appointment of commissioners by both the White House and the congressional leadership. The National Commission on Terrorist Attacks Upon the United States, usually called the 9/11 Commission, is the most recent example of this approach. The hybrid commission can be challenged on constitutional grounds as an intrusion on executive prerogative, so its success still requires the president’s support and cooperation. (footnote 8)    In general, the presidential commission seems a smoother, less legally problematic model, whereas the hybrid commission is cumbersome but more likely to command broad public support and confidence from the outset.

In either model, the commissioners themselves must have the right measure of integrity and commitment. Are they willing to pursue their questions to definitive answers, no matter who is embarrassed or injured by the outcome? Do they place the interests of those who appointed them ahead of their obligation to investigate the facts? A well-constituted commission is neither partisan nor relenting. It publishes the truth and leaves the prosecution to later actors.

V. Implementation

Many commissions failed to achieve positive ends because they were poorly designed. History suggests that certain structural and legal characteristics, combined with a careful definition of scope, can lead to a successful outcome.

Composition

The first action of any administration whose conduct comes under scrutiny is to claim that the process is politically motivated. The first step in addressing those claims is to separate the process of initial investigation from the process of prosecution, as discussed above. (footnote 9)  But the commission itself also can be structured in such a way as to mitigate partisan concerns. This will require real wisdom, however. Simple “balancing” won’t do the job.

The 9/11 Commission, for instance, was crafted as a “bipartisan” institution, with co-equal Democratic and Republican chairs, on the premise that each would counteract the partisan proclivities of the other. In the end, though, this balancing served only to provide political ammunition to both parties. Any future war-crimes commission should therefore avoid openly partisan commissioners and staff.

The political parties cannot be ignored—in order to command appropriate levels of support within the Washington political establishment, the commission will need party- affiliated co-chairs who none-theless are viewed as being consensus-builders—but the balance of the commission should be persons of established integrity whose professional backgrounds involve the skills essential to studying, understanding, and dealing critically with the issues arising from the practice of torture. A record of partisan political engagement should weigh against a candidate’s selection. The experience pool should include prosecutors, intelligence professionals, retired military leaders, religious leaders and ethicists, human-rights advocates, health-care professionals, and diplomats.

Someone will have to choose those people. The 9/11 Commission legislation gave that responsibility to the secretary of defense, the speaker of the House of Representatives, the Senate majority leader, and the minority leaders in both houses of Congress. It probably will be difficult to avoid a similar delegation of authority. But to ensure that the persons selected are not simply partisan political surrogates, a further layer might be incorporated. A qualifications commission could be appointed first, consisting of a dozen members who would have the sole task of preparing a list of pre- approved candidates. The appointees would then have to be drawn from this list. This approach was taken by South Africa in its Truth and Reconciliation Commission, and it resulted in a final body that commanded broad public respect. Indeed, observers of the South African process have often cited the two-tiered appointments process as a key to the commission’s overall success.

Powers of the Commission

The bulk of the commission’s work would be carried out not by politicians but by a professional staff of lawyers, investigators, subject experts, and various assistants. The authorizing legislation should assume a staff roughly equal to that of the 9/11 Commission, which totaled nearly eighty. Preference would be given to persons who had previously obtained the necessary security classifications, but the new commission should also be given the power to quickly address security- classification issues. Staff members should be authorized not only to hold and deal with the most sensitive classified documents in a dedicated, secured document room but also to declassify or require the declassification of documents, redacted as appropriate, and to publish the results.

It will be essential for the commission to exercise subpoena power; that is, the ability to force witnesses to appear and testify before it with the possibility of civil or criminal penalties if they fail to appear or give misleading or false testimony. Without this power it would be very difficult for the commission to assemble the information it needs to issue its report. To invest the commission with these powers would be a somewhat complex legal matter, but not an insurmountable one.   (footnote 10)

Scope of the Investigation

The commission’s mandate requires definition and focus. It must also, however, provide the commission with reasonable room to pursue leads that arise in the course of its investigation. The commission’s charge, therefore, should be _to examine the formation and implementation of policy concerning the treatment of detainees in operations (including intelligence operations) undertaken in connection with the Authorization for Use of Military Force Against Terrorists. _Tying the subject matter to a specific piece of legislation will keep the investigation focused on a single controlling authority even as it allows investigators to explore all of the operations in which that authority was used, whether in Iraq or Afghanistan, nearby staging areas, or other sites around the world, including Guantánamo and “black sites” yet to be identified.  (footnote 11)

Such a mandate would also allow the commission to investigate a variety of non-administration actors, including Congress itself. Republicans have frequently argued that many powerful Democrats, including House Majority Leader Nancy Pelosi and Intelligence Committee Chairman Jay Rockefeller, were fully briefed on the administration’s torture policy and failed to raise objections. Did Congress acquiesce to the administration’s choices? Did it provide legal authority?   Republicans may be questioning Democratic involvement simply in order to discourage congressional inquiries. But such questions nonetheless are completely legitimate.

Findings

The commission should conduct its work in public to the fullest possible extent. Open hearings will educate the people about the issues under inquiry and also help to build a consensus in resolving those issues. Putting the testimony of victims and witnesses on the record will be a crucial element of that process. It will be a first step toward restoring the dignity and humanity of the victims, and it will also serve to reveal, authenticate, and preserve vital evidence that may be used in later legal proceedings.

Documents, particularly the many classified documents that the administration continues to withhold from Congress and the public, will be at the core of the commission’s work. The president and his advisers, like members of many regimes engaged in legally questionable actions, have placed great emphasis on creating a legal groundwork for their actions. The commissioners would examine these memos, briefs, and other records with the aid of witnesses, but it is essential that the documents themselves also be made permanently available to journalists, scholars, and lawyers. A full fact-finding process is likely to take decades. Public scrutiny can lead to the identification of important details that even the most talented investigators may miss on the first and second pass.

The commission would also be required to prepare an in-depth report. The report should provide a comprehensive narrative, setting out in detail how U.S. torture policy came to be formed and identifying the key actors and the decisions they made.

Recommendations

The report’s function would be more than historical, of course. It must be forward-looking. Should laws be changed, regulations rewritten, new procedures adopted?  (footnote 12)

More important, the commission must look at the conduct of official actors. Were laws and policies faithfully applied or were they broken? If laws were broken, was there criminal conduct that merits study by law- enforcement professionals? This analysis would establish the background for the three most important potential results of a commission: the formal recommendation to pardon, the formal recommendation to pursue prosecution, and the formal recommendation to make reparations.

On the matter of reparations, the commission could do a great deal of good. The United States has already committed itself, under existing international agreements, to making reparations to victims of torture. Thus far, though, government action on this front has consisted primarily of efforts to foreclose recovery. Moreover, the U.S. litigation system is extremely costly and may not be an efficient means of providing redress in situations where victims are non-citizens and located outside of the United States. A commission might recommend such alternative approaches as creating a claims-settlement commission or granting special authority for ex gratia payments under which the United States could offer compensation without being seen as acknowledging wrongdoing. In cases in which a victim is convicted of criminal wrongdoing, the fact that he suffered torture may be considered in connection with sentencing, and some guidelines for this should be furnished.

The recommendations to prosecute or pardon would not be binding in any formal sense. Only the president has the constitutional authority to pardon at the federal level, and any indictment ultimately would have to find its way to prosecutors and the courts. The recommendations, then, would be persuasive only to the extent that the commissioners successfully made the case for them. (Many of the 9/11 Commission recommendations, for instance, have yet to be enacted.) Still, the commission would certainly be staffed with some career prosecutors. It should be in a solid position to assess whether a special prosecutor should be appointed. And that prosecutor would have a great deal of evidence and political momentum at his or her disposal. If the process is pursued faithfully, the recommendations should have considerable political influence.

The hallmark of the Bush Administration has been its tendency to rush to judgment, certain of propositions that turned out to be dead wrong. In addressing its errors, such failings cannot be repeated. The commission should proceed with care and take the time it needs to develop a full record. The process is likely to consume at least two years and possibly much longer. This is not necessarily a liability. Right now, the administration looms large and justice seems distant. That perspective will change significantly with the passage of time.