- Elizabeth Holtzman, a former New York congresswoman,
is co-author with Cynthia L. Cooper of The Impeachment of George W. Bush:
A Practical Guide for Concerned Citizens.
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- Thirty-two years ago, President Gerald Ford created a
political firestorm by pardoning former President Richard Nixon of all
crimes he may have committed in Watergate -- and lost his election as a
result. Now, President Bush, to avoid a similar public outcry, is quietly
trying to pardon himself of any crimes connected with the torture and mistreatment
of U.S. detainees.
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- The ''pardon'' is buried in Bush's proposed legislation
to create a new kind of military tribunal for cases involving top al-Qaida
operatives. The ''pardon'' provision has nothing to do with the tribunals.
Instead, it guts the War Crimes Act of 1996, a federal law that makes it
a crime, in some cases punishable by death, to mistreat detainees in violation
of the Geneva Conventions and makes the new, weaker terms of the War Crimes
Act retroactive to 9/11.
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- Press accounts of the provision have described it as
providing immunity for CIA interrogators. But its terms cover the president
and other top officials because the act applies to any U.S. national.
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- Avoiding prosecution under the War Crimes Act has been
an obsession of this administration since shortly after 9/11. In a January
2002 memorandum to the president, then-White House Counsel Alberto Gonzales
pointed out the problem of prosecution for detainee mistreatment under
the War Crimes Act. He notes that given the vague language of the statute,
no one could predict what future ''prosecutors and independent counsels''
might do if they decided to bring charges under the act. As an author of
the 1978 special prosecutor statute, I know that independent counsels (who
used to be called ''special prosecutors'' prior to the statute's reauthorization
in 1994) aren't for low-level government officials such as CIA interrogators,
but for the president and his Cabinet. It is clear that Gonzales was concerned
about top administration officials.
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- Gonzales also understood that the specter of prosecution
could hang over top administration officials involved in detainee mistreatment
throughout their lives. Because there is no statute of limitations in cases
where death resulted from the mistreatment, prosecutors far into the future,
not appointed by Bush or beholden to him, would be making the decisions
whether to prosecute.
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- To ''reduce the threat of domestic criminal prosecution
under the War Crimes Act,'' Gonzales recommended that Bush not apply the
Geneva Conventions to al-Qaida and the Taliban. Since the War Crimes Act
carried out the Geneva Conventions, Gonzales reasoned that if the Conventions
didn't apply, neither did the War Crimes Act. Bush implemented the recommendation
on Feb. 7, 2002.
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- When the Supreme Court recently decided that the Conventions
did apply to al-Qaida and Taliban detainees, the possibility of criminal
liability for high-level administration officials reared its ugly head
again.
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- What to do? The administration has apparently decided
to secure immunity from prosecution through legislation. Under cover of
the controversy involving the military tribunals and whether they could
use hearsay or coerced evidence, the administration is trying to pardon
itself, hoping that no one will notice. The urgent timetable has to do
more than anything with the possibility that the next Congress may be controlled
by Democrats, who will not permit such a provision to be adopted.
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- Creating immunity retroactively for violating the law
sets a terrible precedent. The president takes an oath of office to uphold
the Constitution; that document requires him to obey the laws, not violate
them. A president who knowingly and deliberately violates U.S. criminal
laws should not be able to use stealth tactics to immunize himself from
liability, and Congress should not go along.
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- Elizabeth Holtzman, a former New York congresswoman,
is co-author with Cynthia L. Cooper of The Impeachment of George W. Bush:
A Practical Guide for Concerned Citizens.
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