As to the Bush administration’s illegal excesses over the last eight years, there are a few salient options: (1) let bygones be bygones; (2) sic prosecutors after the lawbreakers; or (3) form up a South Africa-style Truth and Reconciliation Commission.

I am starting to lean toward option three. It would have the benefit of partially muting the “Witch hunt!” wing of the naysayers and, above all else, have the power to bring to light all of the illegal things that have been done in our name over the last eight years.

Here’s where the action comes in. Representative John Conyers has introduced legislation to create a Truth Commission:

There is established the National Commission on Presidential War Powers and Civil Liberties (hereinafter in this Act referred to as the “Commission”) to investigate the broad range of policies of the Administration of President George W. Bush that were undertaken under claims of unreviewable war powers, including detention by the United States Armed Forces and the intelligence community, the use by the United States Armed Forces or the intelligence community of enhanced interrogation techniques or interrogation techniques not authorized by the Uniform Code of Military Justice, “ghosting” or other policies intended to conceal the fact that an individual has been captured or detained, extraordinary rendition, domestic warrantless electronic surveillance, and other policies that the Commission may determine to be relevant to its investigation (hereinafter in this Act referred to as “the activities”).

If you want some background on the potential illegality the bill is referencing, check out the new 500-page report that was issued on Tuesday: “Reining in the Imperial Presidency: Lessons and Recommendations Relating to the presidency of George W. Bush“.

To date, Conyers’ bill has only received 12 co-sponsors. We need to get the word out to Congress that Conyers’ bill is important and has our support. If you have a few minutes, please write or call your Congressperson today to express your support for the Conyers bill: H.R. 104.

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Ah, I can feel the fresh air already. When asked whether waterboarding is torture and therefore illegal during his confirmation hearings today, soon-to-be Attorney General Eric Holder replied:

“If you look at the history of the use of that technique, used by the Khmer Rouge, used in the Inquisition, used by the Japanese and prosecuted by us as war crimes. We prosecuted our own soldiers for using it in Vietnam. I agree with you, Mr. Chairman, waterboarding is torture.”

Judiciary Committee Chairman Pat Leahy (D-Vt.) followed up, asking if foreign countries would have the authority to waterboard U.S. citizens, if they deemed it necessary for their national security. “No, they would not,” Holder replied, “It would violate the international obligations that I think all civilized nations have agreed to — the Geneva Conventions.”

Here’s the video:

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It looks as if the Bush White House repeatedly ignored the warnings of top officials that their torture plans were illegal:

President Bush and his aides repeatedly ignored warnings that their torture plans were illegal from high State Department officials as well as the nation’s top uniformed legal officers, the Judge Advocates General of the Army, Navy, Air Force and Marines, a new published report states.

“These warnings of illegality and immorality given by knowledgeable and experienced (government) persons were ignored by the small group of high Executive officers who were determined that America would torture and abuse its prisoners and who had the decision-making power to secretly require this to be done,” said Lawrence Velvel, chairman of the “Steering Committee of the Justice Robert H. Jackson Conference On Planning For The Prosecution of High Level American War Criminals.” Velvel is a noted reformer in the field of American legal education.

“Far from American officials and lawyers authorizing or engaging in torture because it was lawful, they authorized and engaged in it because they wanted to (and) kept their actions secret from interested officials for as long as they could lest there be strong opposition to the torture and abuse they were perpetrating,” Velvel said. “They deliberately ignored repeated warnings that the torture and abuse were illegal and could lead to prosecutions, and they ignored these warnings even when they came from high level civilian and military officers.”

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The chief Pentagon official responsible for overseeing Bush’s military tribunals reveals that we unequivocally did torture:

“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.

This highlights one important thing to remember about torture. Not only is it ineffective in obtaining quality intelligence, it also results in catastrophically tainted evidence against bad actors, which, in this case, led to a Very Bad Guy not being prosecuted.

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Further to my earlier post asking the question Should We Prosecute Bush for Torture?, check out this interview with Jonathan Turley, professor of constitutional law at The George Washington University Law School:

Key quote:

“If waterboarding is torture — and Barack Obama has said that it is torture — and torture is a war crime, then the president has committed a war crime if he did order waterboarding. You have to do some heavy lifting to avoid the simplicity of that logic.”

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A helpful video to explain to your friends and family why gay marriage would be just as bad as dropping the atom bomb on Nagasaki:

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This is hilarious! Governor Hairdo is marketing his enormous cojones.

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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?

Mason, a reader, answered as follows:

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.

Here’s my response as to his argument about prosecutions in the U.S. (I largely agreed with him on the international side of things):

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.

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