Clearly, it would not avail a private criminal defendant – say, the capo of a New York City crime family – to argue that he is above the law.
Yet, in the parallel universe of “after-9/11”, the Bush lawyers gained traction in Republican-dominated courts with this very argument, buttressed by self-serving OLC “legal opinions” the likes of which Mafia lawyers would be happy to provide their clients, if they could get away with it.
The Bush administration surpassed the real Mob when it decided – in secret – that its crimes were legal. As the French would say, it boldly claimed the status of a régime mafiuse.
Eric Holder (pic), the new Attorney General, has promised a return to the Rule of Law. He will have his work cut out for him, however, as many Mob lawyers remain entrenched in the Justice Department.
Fortunately, an excellent legal team has been nominated by President Obama, and perhaps they won’t be as gentle on the last administration’s lawyers as Stuart Taylor of the National Journal hopes.
For starters, the new head of the Office of Legal Counsel will be the outspoken law professor Dawn Johnsen, a person who seems unlikely to issue get-out-of-jail cards for ingenious executive crimes.
Harvard law dean Elena Kagan (pic) will be Solicitor General, and her deputy will be Neal Katyal, who argued the case for Hamdan before the Supreme Court.
At the Pentagon, the appointment of Jeh Johnson as General Counsel portends changes there as well.
Already, “persons of interest” from the Cheney-Bush syndicate are coming in from the cold.
Susan Crawford, Dick Cheney’s handpicked “Convening Authority” for military commissions, departed from script, becoming the first administration official to boldly say, “we tortured detainees”.
Crawford named Donald Rumsfeld as the architect of the torture in question, that of Mohammed Al-Qahtani, whose lawyers were quick to respond.
The Washington Post’s Dan Froomkin has more on this curious development.
All this has seriously spooked the outgoing CIA director, Michael Hayden, as Jason Leopold reports.
Meanwhile, the unrepentant and unlamented Donald Rumsfeld is feeling the full force of that old Mexican curse – “May your life be filled with lawyers”.
The fathers of two men who suicided at Gitmo in 2006 are suing the former Secretary of Defence in a civil suit for wrongful death. Law.com has more on this.
Rumsfeld is not alone. Former Attorney General John Ashcroft (seen here) is defending two suits for domestic detentions and mistreatment pending in the Supreme Court and 2nd Court of Appeals, respectively.
Ashcroft v Iqbal involves the extralegal round-up in 2001 of thousands of Muslim men. NY Times has more detail on this case.
Arar v Ashcroft is the case of Maher Arar, an innocent Canadian who was grabbed by US Immigration while transiting JFK airport and forcibly flown to Syria where he was tortured for nearly a year.
* * *
While more civil suits for torture are likely, prosecution for war crimes is also possible, according to The Nation as well as a Chicago Sun-Times op-ed.
As Elizabeth Holtzman explains, Congress could remove the retroactive immunity from War Crimes Act liability that the Military Commissions Act inserted for Bush officials, and restore war crimes liability.
Even lawyers (e.g. John Yoo, David Addington, Jay Bybee and “Jim” Haynes) are candidates for prosecution.
Bruce Ackerman argues in Slate that Bybee, now a 9th Court of Appeals judge, should be impeached.
Law prof and blogger Scott Horton has an article in Harper’s on “Justice After Bush – Prosecuting an Outlaw Administration”.
* * *
If Obama’s Justice Department decides to prosecute anyone from the Ancien Régime, the House Judiciary Committee has just released a handy 487 page compendium of Bush administration crimes.
Also, the Senate Armed Services Committee led by Senators Levin and McCain has issued a bipartisan report on the torture policies of the Bush administration. The executive summary cam be found HERE.
The Armed Services Committee’s report was all too much for The Wall Street Journal, which fumed that Senator Levin’s call for an independent commission to investigate “alleged (sic) torture policies … will … encourage some grandstanding foreign prosecutor to arrest Mr Rumsfeld and other Bush officials like Pinochet if they dare to leave the US”.
One certainly hopes so.
The Senate committee also released several previously undisclosed “torture” and related memos, but this proved unnecessary. Now that the Bush Gang has left town, they are spilling their guts.
For instance, the Justice Department has now provided the OLC advice that Congress has sought for four years: Patrick Philbin’s (pic) November 2001 “legal opinion” that upheld the legality of Bush’s “presidential” military commissions – afterwards declared unconstitutional by the Supreme Court .
The DoJ website has also published other opinions it had suppressed for up to eight years.
The most notorious opinions are still missing, including John Yoo’s memo of September 21, 2001 claiming the Fourth Amendment doesn’t apply to the Bush Regime.
* * *
Torture and abuse are hardly a secret anymore. Indeed, the Bush administration is actually arguing that evidence obtained by torture is admissible.
In a little-reported case in the Court of Military Commission Review, the government has appealed the decision of commission judge Stephen Henley in which he refused to admit the tortured confessions of Mohamed Jawad.
This must surely represent the nadir of the Bush Gang – seeking to use the tortured evidence of a child and then appealing the order of the judge who excluded it.
The amended brief on which Jawad’s lawyers argued his case on January 13 is HERE.
On the same day, Jawad’s former prosecutor, Lt Col Darrel Vandeveld (see my post of October 27), filed an affidavit in support of his DC habeas action.
The Washington Post has more on this.
In his affidavit, Vandeveld sees himself as Jawad’s “former prosecutor and now-repentant persecutor”.