An interesting side-discussion about whether we should prosecute Bush and his cronies came up via email in connection with the comments section in an earlier post.

I initially asked the following question:

I’m curious to know whether you believe that Cheney-Gonzalez-Feith tribunals might be warranted. If we take as a given that the Bush Administration likely authorized the torture of prisoners in contravention of U.S. law and the Geneva Conventions, wouldn’t tribunals be warranted?

For the sake of argument … absolutely not. In terms of an international tribunal, beside the principle of sovereign immunity, there’s a basic tenet in our Anglo-American jurisprudence that the only permissible government authority is one derived from the consent of the governed. The U.S. is not a party to the ICC – no jurisdiction there. The judges of the other main international court, the ICJ, are elected by the members of the General Assembly; I can’t think of any rational justification to permit someone elected by the likes of Sudan, Congo, Iran, Russia, Pakistan or Zimbabwe conceit to sit in judgment over any American official.

As to U.S. law, the idea of domestic tribunals is similarly a bad idea. Think about the pragmatic consideration behind the Constitutional prohibition of Bills of Attainder. It’s just a terrible precedent to criminalize disagreements over policy; you don’t want to initiate a cycle where every 8 or 12 years, whenever the opposition party takes over the reins of government, they initiate criminal prosecutions of their former political adversaries.

Look at the British experience – the British were civilized when they abandoned the tradition of sending former ministers to the Tower for a beheading – better to kick ‘em upstairs, give ‘em a George’s Cross and let ‘em sip gin in retirement.

On the U.S. side of the equation, I disagree. To start out with, what exactly do you think a President (and, by extension, the Vice President, Cabinet officials, OLC + DOJ lawyers, etc.) needs to do in order to be legally liable under criminal law? Taken another way, in what areas would a President/other officials not be above the rule of law?

Your comments on the English experience with Bills of Attainder is apt, but only up to a certain point. When we’re dealing with disagreements over policy, of course I agree that we shouldn’t subject ourselves to an every-eight-years witch hunt when a new party comes to power.

But what about in the circumstance where an official (say, the President and Vice President) specifically and willfully violates the U.S. Constitution, a criminal law or an international treaty?

Torture is and has been illegal in this country and under international law for a long time. [Edit: Check out this Washington University Law Review article on the subject of the illegality of waterboarding.] Looking to history, we executed Japanese officers for ordering the waterboarding of our troops back in WWII.

Is waterboarding only bad when foreign governments do it? Are only foreign officials subject to the rule of law when they order that our soldiers be tortured? At what point do we hold our own government officials responsible for violating these laws?

You must realize that the logical extension of your argument is that the President and his advisers should enjoy absolute immunity for everything done that is arguably related to their official duties, no matter how intentional the violation of the rule of law.

As a side note, what were your opinions on Clinton’s impeachment? If you were to present to me a hypothetical country, where the government holds an official to account for perjury but refuses to hold another official to account for the willful violation of the country’s constitution, criminal laws and international treaties that prohibit torturing people — I wouldn’t find this hypothetical country very appealing.