What Does Letting Our Own War Criminals Go Free Tell Us About Ourselves?

Since I live in the Village, my Congressman is Jerrold Nadler, a civil libertarian for all seasons. Unlike many of his Democratic colleagues, he has never been in fear of being targeted as "soft on terrorism" for opposing the Bush-Cheney war on the Bill of Rights. Nadler certainly does not underestimate the jihadists: The 9/11 attacks exploded in his district.

In The Almanac of American Politics, Michael Barone describes Nadler's reaction to that day of terror: Securing "$20 billion for the cleanup and eventual rebuilding, he spearheaded numerous actions on behalf of affected families . . ." but "Nadler remained true to his civil libertarian views. He vigorously opposed the USA Patriot Act and the Iraq War Resolution." And since 2007, he has chaired the Subcommittee on the Constitution, Civil Rights, and Civil Liberties.

In that subcommittee, and on the floor of the House, he fought Bush (and some Democrats) in order to give "enemy combatants" their habeas corpus rights. (The Supreme Court has agreed.) And, unlike many Democrats, he has worked to narrow the very definition of "enemy combatant," which is especially important. Under the Military Commissions Act of 2006, voted for by too many Democrats, anyone held as a captured "detainee" in a military prison can be charged with giving "material support" to the enemy and can be locked up indefinitely. American citizens have also been held on this charge—which could include giving money to a charity they weren't aware was on some secret government list—and thus accused of having "links," however tenuous, to terrorism.

Now, in House Resolution 1531—introduced on November 20—Nadler is the first member of Congress to urge Bush, in his final 90 days, not to pardon "senior members of his administration." This is intended to prevent Bush from giving immunity from prosecution to those "senior members" responsible for the torture policy and other violations of U.S. and international laws that could make Dick Cheney, for example, a defendant.

As of this writing, a November 25 Wall Street Journal headline indicates that the "White House Is Disinclined to Grant Clemency to Officials Involved in Terror Policies." I doubt that Bush—his legacy already in irredeemable shambles—would want to add, as he left, a firestorm of abuse far greater than what engulfed President Ford for pardoning Nixon. But, conceivably, Bush could change his mind, pressured by senior colleagues and CIA officials who would dread learning, firsthand, what prison conditions are actually like. Nevertheless, although the section about a pardon in Nadler's resolution may well not be necessary, it's good to have it as a preemptive way to prevent Bush from issuing, in the last hours of his reign, pardons for his accomplices.

The rest of Nadler's resolution concerns President Obama and the next Congress, with its stronger Democratic majority: Will they exempt the upper levels of Bush's chain of command, and Bush himself, from any accountability for their serial war crimes? Details of this can be readily found in Beyond The Law: The Bush Administration's Unlawful Responses in the "War" on Terror (Cambridge University Press) by Jordon J. Paust, professor of international law at the University of Houston.

The climax of the Nadler resolution—which can and, I expect, will be introduced in the next Congress—continues: "It is the sense of the House of Representatives that a special investigative commission, or a Select Committee, be tasked with investigating possible illegal activities by senior officials of the administration of President George W. Bush, including, if necessary, any abuse of the President's pardon power . . . [that] the next Attorney General of the United States appoint an independent counsel to investigate and, where appropriate, persecute illegal acts by senior officials of the administration of President George W. Bush."

There will, of course, be searing resistance by Republicans and more than a few Democrats to these attempts which would show the world and, far more importantly, present and future Americans that "The government of the United States has been emphatically termed a government of laws, and not of men" (Chief Justice John Marshall, Marbury v. Madison, 1803).

Among President Obama's advisers (and, seemingly, in the man himself), there is a division as to what, if anything, should be done to the chief rapists of the Constitution since 9/11. On one hand, with so much for the new president to do, he'll need public support, so why distract the citizenry with old news? Also, for many of us, there's much more concern about keeping our jobs (or scrambling to find new ones) than finding out who ordered waterboarding or gave the CIA blanket permission to hide away suspects in secret "black-site" prisons.

The answer to this quandary—and I think Barack Obama is capable of understanding this—is provided by Scott Horton, former president of the International League for Human Rights, and a Tom Paine of our time, in a story in Harper's December issue, called "Justice After Bush": "If the people wish to retain 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 (among other crimes), it ratifies the failure of the people to control the actions of their government" (emphasis added).

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