Marjorie Cohn: It Would Be Illegal for Bush to Pardon Himself or Cheney for Torture and Obama Is Legally Required to Prosecute

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Marjorie Cohn: It Would Be Illegal for Bush to Pardon Himself or Cheney for Torture and Obama Is Legally Required to Prosecute
By: Jim White Friday December 19, 2008 11:49 am	Tweet

Cohn

Writing Friday at Common Dreams, Marjorie Cohn, President of the National Lawyers Guild and a Professor at the Thomas Jefferson School of Law in San Diego, tells us that President Bush cannot pardon himself or Vice President Cheney for authorizing torture. Further, she tells us that it would be illegal for President elect Obama to fail to prosecute them for their crimes.

She starts with Cheney’s recent confession on national television:

Dick Cheney has publicly confessed to ordering war crimes. Asked about waterboarding in an ABC News interview, Cheney replied, "I was aware of the program, certainly, and involved in helping get the process cleared." He also said he still believes waterboarding was an appropriate method to use on terrorism suspects. CIA Director Michael Hayden confirmed that the agency waterboarded three Al Qaeda suspects in 2002 and 2003.

She follows by pointing out that waterboarding has long been held to be torture:

U.S. courts have long held that waterboarding, where water is poured into someone’s nose and mouth until he nearly drowns, constitutes torture. Our federal War Crimes Act defines torture as a war crime punishable by life imprisonment or even the death penalty if the victim dies.

After telling us that the doctrine of command responsibility places both Bush and Cheney in line for prosecution, she poses and then answers a question about Cheney’s attitude in his confession:

Why is Cheney so sanguine about admitting he is a war criminal? Because he’s confident that either President Bush will preemptively pardon him or President-elect Obama won’t prosecute him.

However, Cohn has very bad news for Cheney:

Both of those courses of action would be illegal.

She gives two reasons for this conclusion:

First, a president cannot immunize himself or his subordinates for committing crimes that he himself authorized.

/snip/

Second, the Constitution requires President Obama to faithfully execute the laws. That means prosecuting lawbreakers.

For the first point, she cites this analysis. For the second point, she cites the recent Levin report and Alberto Mora’s statement that the top two reasons for recruitment for insurgents are Abu Graib and Guantanamo.

She ends with a clear call for a prosecutor:

When he takes office, Obama should order his new attorney general to appoint an independent prosecutor to investigate and prosecute those who ordered and authorized the commission of war crimes.

Obama has promised to bring real change. This must be legal and moral change, where those at the highest levels of government are held accountable for their heinous crimes. The new president should move swiftly to set an important precedent that you can’t authorize war crimes and get away with it.

This is hardly some shrill, left-wing lunatic fringe rant. Cohn is a respected legal authority who has testified to Congress many times. Let’s hope her message is heard.

25 Comments Recommend

25 Responses to Marjorie Cohn: It Would Be Illegal for Bush to Pardon Himself or Cheney for Torture and Obama Is Legally Required to Prosecute

perris December 19th, 2008 at 1:21 pm «

Let’s hope her message is heard.

it is known by obama, he is no fool, he will ignore it never the less, thereby becomming an accomplice

sad to say but this is where we are today, obama has failed on too many fronts to even hope he will deliver our constitution restitution

sorry

rxbusa December 20th, 2008 at 4:19 am «

Don’t you think it would be foolish for Obama to tip his hand before he is even inaugurated? I would really like to make sure that the transfer of power actually happens first.

Kassandra December 20th, 2008 at 6:56 am «

Don’t you think it would be foolish for Obama to tip his hand before he is even inaugurated? I would really like to make sure that the transfer of power actually happens first.

A very good point and one I fervently hope is what is truly happening.

sadlyyes December 19th, 2008 at 2:55 pm «

pass the popcorn!!
lokywoky December 19th, 2008 at 3:37 pm «

Digg is open. Be sure to comment on Digg. Then thumbs-up rate other comments. Each action counts as another Digg!

Let’s really push this story!!!

acquarius74 December 19th, 2008 at 4:40 pm «

DUGG, commented (and thumbs up to your’s, lokywoky), and recommended.

Thank you, Jim. I’m so glad to learn that Marjorie Cohn is speaking out on this. She is one determined, intelligent and skilled attorney. Obama had best listen to her.

Please watch for a petition on this, Jim, and alert us.

acquarius74 December 19th, 2008 at 4:44 pm «

Please forgive my going O/T, Jim. On this evening’s BBC news they reported that Russian ships had entered Havana Harbor. No additional info on it.
acquarius74 December 19th, 2008 at 5:09 pm «

Here’s link to BBC report on Russian ships in Havana. They also passed through Panama Canal for first time since WWII.

http://news.bbc.co.uk/2/hi/americas/7792370.stm

bluebutterfly December 20th, 2008 at 12:27 pm «

The US continues to try to encircle Russia with their missile defense shield. They continue to demonize Russia..example Georgia. While the rest of the world was actively reporting that Georgia started the fighting, the US MSM was blaming Russia. Obama made threats against Russia, too. US and Israeli were there training Georgians, before the conflict started; just like Mossad is in Kashmir right now with their top commandos.

Russia is making a statement that they are free to travel anywhere in the world. We can visit Cuba..right on your doorstep Bush, and there is nothing you can do about it, seems to be the message. Russia is making business deals throughout Central America and that means Russian ships can pop up absolutely anywhere, anytime, and be welcomed by their trading partners.

US threats against Russia are only making sure that Russia is actively pursuing new weapons to counteract the threats.

http://english.pravda.ru/russi….._missile-0

acquarius74 December 20th, 2008 at 1:27 pm «

I remember well those tense days in Oct. 1962 when JFK and Krushev stood nose to nose and we were so close to nuclear war. Then JFK made the deal to remove our missiles from Turkey and K agreed to remove the Russian missiles from Cuba.

This is a loud and clear warning to US – you put missile shields in Ukraine & Poland, we put missiles in Cuba. (and probably Venezuela).

Those visiting ships were’t just any old ships, they were battleships with other types in accompaniment.

Bush and his fixation on destruction has brought about this deterioration in relations with Russia and just about every other country in the world.
acquarius74 December 20th, 2008 at 1:44 pm «

Thanks for the link, bb. Sounds ominous, yet the Russian spokesman stated that their current program would only continue if US insists on the missile shields in Eastern Europe.

The NATO countries and others in the area better wake up and speak up against the missile shields. Sure looks to me like rather than protecting them, it is bringing a heavy threat right down upon them.

I guess our next big movement should be ban the missile shields and the program for launching missiles from space.

Armed Madhouse, indeed.

Jkat December 21st, 2008 at 11:08 am «

those exact same russian ships were engaged in joint exercises with the US Navy off the coasts of virginai and north carolina .. just recently .. they were even photographed at dock in Norfolk Navy yard ..

get a grip eh ?? it’s not 1955 anymore …

Millineryman December 19th, 2008 at 6:36 pm «

Thanks for this info Jim.
wigwam December 19th, 2008 at 9:02 pm «

I like what Marjorie is contending, but the legal reasoning of her and her colleagues on the the steering committee of the Centre for Research on Globalization is at odds with prevailing legal opinion: http://www.globalresearch.ca/i…..;aid=11188

The idea that the pardon power constitutionally includes such pardons [pardons of henchmen] ignores a thousand year tradition in which no man can sit in judgment of himself, and the fact that James Madison and George Mason argued that the reason we needed the impeachment power was that a president might some day try to pardon someone for a crime that he himself was involved in. The problem is not preemptive pardons of people not yet tried and convicted. The problem is not blanket pardons of unnamed masses of people. Both of those types of pardons have been issued in the past and have their appropriate place. The problem is the complete elimination of any semblance of the rule of law if Bush pardons his subordinates for crimes he instructed or authorized them to commit.

If Bush attempts this, here are possible responses:

1. Immediate impeachment of Bush and Cheney and various pardonees, even if they are out of office. (Here are arguments for the permissibility of such impeachments: http://afterdowningstreet.org/node/37834 )

2. Overturning of the pardons by the new president or by Congress, as Bush’s lawyers told him he could do to Clinton’s pardon of Marc Rich, which was a far more minor abuse of the pardon power.

3. Legislation banning self-pardons and pardons of crimes authorized by the president.

4. A Constitutional Amendment banning self-pardons and pardons of crimes authorized by the president.

5. Refusal by the courts to honor the supposed pardons.

6. Prosecution of Bush, Cheney, and their subordinates for their crimes.

The highlighted words are exactly correct, but the prevailing opinion is that the recourse in such circumstances is to, and only to, impeachment and trial in the Senate.

The only recourse, so far as I can tell is post-term impeachment and conviction, which I have argued nullifies pardons, here: http://www.dailykos.com/storyo…..157/563279

Of course there is always also international prosecution under the doctrine of “universal jurisdiction.”
Loo Hoo. December 19th, 2008 at 9:51 pm «

Good news, I think. Thanks, Jim.
stratocruiser December 20th, 2008 at 6:08 am «

The phrase “duty-bound” seems to me to be an absolute requirement. I hope that Obama sees it the same way.
RXBUSA I am hoping that you are right. Maybe if this matter stays quiet til after the Inauguration, Bush will think he doesn’t need to create impediments to prosecution.
Looking back, I am surprised how this entire area has been so far under the radar screen, during both the campaign and the transition.
wigwam December 20th, 2008 at 6:13 am «

Here is what Obama told Will Bunch in April:

What I would want to do is to have my Justice Department and my Attorney General immediately review the information that’s already there and to find out are there inquiries that need to be pursued. I can’t prejudge that because we don’t have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You’re also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we’ve got too many problems we’ve got to solve.

So this is an area where I would want to exercise judgment — I would want to find out directly from my Attorney General — having pursued, having looked at what’s out there right now — are there possibilities of genuine crimes as opposed to really bad policies. And I think it’s important– one of the things we’ve got to figure out in our political culture generally is distinguishing betyween really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I’ve said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law — and I think that’s roughly how I would look at it.

I consider that assurance from Obama to be worth every bit as much as his promise not to vote for any FISA amendments that contained telcom immunity.

Kassandra December 20th, 2008 at 6:59 am «

Meanwhile, Cheney is busy shredding evidence and assuming the power to decide what goes into the records. Cheney; the true presidente

yellowsnapdragon December 20th, 2008 at 7:53 am «

Carrying out the law as written in the current political climate is not likely. If torture can be used with the implicit consent of congress–along with any number of other crimes that violate the Constitution like eavesdropping–how can we expect that the laws criminalizing torture will be executed?

The most insidious crime of this administration is it’s impunity. It has rendered the law meaningless.
ThingsComeUndone December 20th, 2008 at 8:09 am «

Can we get her talk here?
wigwam December 20th, 2008 at 10:22 am «

It has rendered the law meaningless.

Correction: it has been allowed to render the law meaningless. The founders anticipated such problems, and that’s why they included impeachment in the Constution. Nancy Pelosi has unilaterally suspended that portion of the Constitution thereby enabling a reign of lawlessness. Failure to exercise authority to stop an ongoing program of war crimes is, under the doctrine of “command responsibility,” a form of complicity. IMHO, it would not be inappropriate to prosecute Pelosi along with the members of the Bush administration.

yellowsnapdragon December 20th, 2008 at 11:16 am «

Taking impeachment off the table was the most damaging act of the bush years, imo. Nancy Pelosi legitimized the criminal behavior of the administration, which is more dangerous than the crimes themselves.

bluebutterfly December 20th, 2008 at 11:58 am «

She had to take it off the table to protect herself and 7 others; the gang of 8 who were told about torture in 2002 and 2003 and said nothing. Democrats and Republicans are collectively guilty of war crimes. There never was any hope of impeachment.

wigwam December 20th, 2008 at 10:51 am «

Per Glenn Greenwald:

Isn’t this all so painfully basic? When the predominant Beltway argument is stripped of euphemisms, it amounts to nothing less than the claim that our political leaders should be — and are — free to break our laws. And that’s the system we’ve adopted. It’s why Dick Cheney feels free to smugly admit in public that he authorized these war crimes. He knows that the Ruth Marcuses of the world will intervene to defend him. Still, it’s one thing to argue that American political leaders should have the power to commit crimes. It’s another thing entirely to advance the insultingly deceitful and Orwellian claim that doing so is necessary so we can focus on preventing similar lawbreaking in the future.

I strongly recommend the entire article.
foothillsmike December 20th, 2008 at 12:08 pm «

If the house had passed this would the senate have convicted? If the senate failed to convict could he be tried again?

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