Our Ms. Brooks: Justice Unlikely

Rosa Brooks' column in today's Los Angeles Times is a real downer. I think, however, that she's probably right. It's unlikely that George Bush and Dick Cheney will ever be prosecuted for war crimes at the Hague or anywhere else.

It's not that Bush, Cheney and Co. don't deserve to end up in the dock. Retired Army Maj. Gen. Antonio Taguba, who was commissioned by the Pentagon in 2004 to investigate the abuses at Abu Ghraib, recently concluded that "the commander in chief and those under him authorized a systematic regime of torture. ... A government policy was promulgated to the field whereby the Geneva Conventions and the Uniform Code of Military Justice were disregarded. ... There is no longer any doubt as to whether the current administration has committed war crimes."

The human cost of those crimes? It's hard to say for sure, given the administration's penchant for secrecy (understandable, because the president was warned as early as January 2002 of "the threat of domestic criminal prosecution under the War Crimes Act" by his then-chief counsel, Alberto Gonzales). But when the nongovernmental Detainee Abuse and Accountability Project examined thousands of pages of internal government records, it documented more than 330 cases "in which U.S. military and civilian personnel are credibly alleged to have abused or killed detainees" at "U.S. facilities throughout Afghanistan, Iraq and at Guantanamo Bay." ...

Did all this violate U.S. and international law? You betcha. The U.S. is party to the U.N. Convention Against Torture, and torture is also a federal crime. At the time most of the abuses were committed, the War Crimes Act also criminalized violations of Common Article 3 of the Geneva Conventions, which prohibits "cruel treatment and torture [and] outrages upon personal dignity." And under the doctrine of "command responsibility," senior civilian and military leaders could all face criminal liability for authorizing or tolerating the abuses.

But don't hold your breath. As far back as 2001, administration lawyers were crafting legal opinions designed to shelter their bosses from any future criminal liability, and much evidence has since been hidden and destroyed. Then in 2006, the GOP-dominated Congress amended the War Crimes Act -- with retroactive effect -- to make future prosecutions almost impossible. [Emphasis added]

The administration was very thorough in covering trails and tails, using legal opinions from bought shills as a shield for any charges of malfeasance, and then Congress added to the effect by using what appears to be a nifty tool: retroactive immunity.

Still, it is possible that Ms. Brooks and I are both wrong, that we haven't taken into consideration the third part of government, the federal courts. An article in today's NY Times reports that a judge appointed by President Bush in 2001 isn't buying blanket immunity from congressional subpoenas.

President Bush’s top advisers cannot ignore subpoenas issued by Congress, a federal judge ruled on Thursday in a case that involves the firings of several United States attorneys but has much wider constitutional implications for all three branches of government. ...

In essence, the judge — whom Mr. Bush appointed in 2001 — held that whatever immunity from Congressional subpoenas that executive branch officials might enjoy, it was not “absolute.” And in any event, he said, it is up to the courts, not the executive branch, to determine the scope of its immunity in particular cases.

The opinion is not a sweeping one, and it came from the trial bench, which means there's at least a year's worth of appeals ahead, even if fast-tracked. The opinion does suggest, however, that the underlying theory is defective and the courts are unlikely to support such a power grab.

If nothing else, the ruling does mean that it's possible that we'll learn some of the details of just how our Constitution has been gutted for the past eight years. Is that enough? Hardly, but it's a start.