Pardon or prosecute

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Bruce Fein: The President has a duty to pardon or charge Bush/Cheney and others who broke the law

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to the Real News Network, coming to you from our studio in Washington, DC. Last week, President Obama released memoranda from President Bush’s legal counsel that said it was okay to use waterboarding and other extraordinary interrogation methods. Well, after World War II, Japanese soldiers were charged for doing exactly that. Here’s Jon Stewart’s take on the controversy.

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JON STEWART, THE DAILY SHOW: Of course, we caught those torturing Japanese soldiers and gave them sentences ranging from long prison terms to the loss of their heads—we killed them. But on this past Sunday and Monday, the Obama administration made it very clear that they had no such plans.

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April 19, 2009
ABC’s This Week with George Stephanopoulos

RAHM EMANUEL, WHITE HOUSE CHIEF OF STAFF: He believes that people in good faith were operating with the guidance they were provided. They shouldn’t be prosecuted.

GEORGE STEPHANOPOULOS, HOST, THIS WEEK: Well, what about those who devised the policy?

EMANUEL: Yeah. But those who devise policy, he believes that they should not be prosecuted either.

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April 20, 2009
CSPAN

ED HENRY, REPORTER, CNN: Why not the Bush administration lawyers [snip] why are they not being held accountable?

ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY: Well, the president is focused on looking forward. That’s why.

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STEWART: He’s looking forward! But, unfortunately, on Tuesday, Obama may have peeked over his shoulder.

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April 21, 2009

BARACK OBAMA, US PRESIDENT: With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the attorney general.

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STEWART: Whatchu talking about, Obama?

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JAY: So, to help us get to the bottom of these issues, I’m now joined by Bruce Fein. He’s the founder of the American Freedom Agenda that says it works to restore constitutional checks and balances. He served in the US Justice Department under President Reagan, and he’s the author of the book Constitutional Peril, and he works for Ron Paul’s Campaign for Liberty. Thanks for joining us.

FEIN: Thank you for inviting me.

JAY: So what do you make of the argument that everybody was acting in good faith, there was a threat?

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FEIN: Well, that doesn’t justify violating the law. That’s (in a more extreme circumstance) called following-orders defense. It wasn’t accepted in post-World War II Nuremberg; it wasn’t accepted when Adolf Eichmann was prosecuted. I’m not trying to suggest we are at that level, but the fact is we don’t know all of the facts at present. We just got some of these memoranda. It had to [be] come upon by a lawsuit; it wasn’t something that Obama released voluntarily. And, certainly, the precedents are that waterboarding is torture—the attorney general has said that. Waterboarding, which creates an imminent fear of death, is said in the statute that’s in the United States code—is torture, and there is no exception in our torture law that says if you’re acting in a national security situation, you can commit torture. Now, why is that? Even if we thought torture worked (and that’s highly dubious), we don’t do that for the same reason we don’t do the rack and the screw: because it tells us something about us. We don’t want to be savages; even if it needs to be savagery to win, we’d rather die than reduce ourselves to animals. And this idea that all [inaudible] the end does justify the means, and there isn’t really much to substantiate Dick Cheney and others’ assertions that the torture produced all this time is immaterial, because if it were, Paul, why did they stop? Why isn’t Dick Cheney and George Bush saying, “We need to have more of the waterboarding and torture, because it saves so many lives, and Mister Obama is doing a despicable thing by exposing us to these additional terrorist acts ’cause he’s not torturing people”? They aren’t saying that, which is they really believed that what they were doing was so effective that they would have never stopped whatsoever.

JAY: Now, the question is: if this is illegal—and the attorney general, during his hearings to be confirmed, said waterboarding is torture, it’s illegal—how is there even a choice here? President Bush and Vice President Cheney admitted on television that they authorized waterboarding. If the lawyers that told them it was legal were violating the Constitution, why is there even a choice here?

FEIN: Well, remember, you’ve omitted a very important clause of the Constitution. It’s the Take Care Clause. Article 2 of the Constitution says the president is saddled with an obligation to take care that the laws be faithfully executed. Faithfully executed. Not sabotaged or ignored. Faithfully executed. And you’ve described a situation where you have the former president and former vice president saying, “We authorized waterboarding.” We have the present attorney general saying waterboarding is torture, which is a crime. There are no national security exceptions for torture whatsoever. Then the president is obliged to faithfully enforce the law, or he has an option: if he thinks there are mitigating circumstances, he can issue a pardon. That’s what the pardon power is for. But it means the president has to take the political heat, like President Ford took the heat for pardoning Nixon. He can do that. If he thinks there’s extenuating circumstances, yes. That’s why you have the pardoning power, Mr. President, not to just ignore it and duck (being cowardly, to be candid about it) and saying, well, we just want it to go away and pretend it didn’t happen.

JAY: Okay. Now, he’s now said it’s up to the attorney general.

FEIN: No, he’s not said—. He says only with regard to whether or not those who gave legal advice, that is, whether the underlings might be prosecuted. He still hasn’t said it’s up to the attorney general to decide on Cheney or Bush or Condi Rice or Don Rumsfeld or anybody else, the higher ups, the ones responsible for the policy. He’s not said that. He’s only said, well, the lower-down people who aren’t going to create what you might call a disruption of the Toscanini symphony at the top, those are the people you might decide. But remember, in some sense the president can’t get away from his obligation anyway, under the Constitution. He can’t tell, for example, the secretary of defense, “You decide whether to be invading Iraq. I don’t want to decide that,” tell the director of national intelligence, “You decide whether to get out and do a violation of the Foreign Intelligence Surveillance Act.” No. The president is elected because he’s supposed to make those tough decisions. So the fact that he may say “I’ll leave it up to the attorney general” is really simply a way to dodge what is his responsibility to decide for himself, ’cause he’s going to be held responsible for whatever the attorney general decides, ’cause he is the one who nominated [inaudible]—he can remove him at any time.

JAY: Now, the argument that they’re going to give—do give, obviously, is that we’re in such an economic crisis, in terms of the geopolitics, the Afghan war, the problems of Iraq, it doesn’t serve the country well to dig into the past. Let’s just move forward and change the policies in a positive way. What’s wrong with that argument?

FEIN: The mission of any government official, including me when I served in the government for long years, was to faithfully uphold and defend the Constitution and the rule of law of the United States. When I took an oath and when Obama took an oath, [it said] nothing about economic policy, said nothing about it other than the procedures and the process are what the mission of the United States is about. The other things are all secondary. It doesn’t matter whether you have a great, booming economy if we then have no longer rule of law and we have one person above the law who sits in the White House. That’s not the United States I was born into, it’s not the United States I want to stay around with, and it’s not the United States that he has an oath to uphold and defend. Moreover, this rather amateurish or sophomoric statement, “We just want to be forward-looking,” well, Paul, all criminal law is backward-looking. We don’t prosecute people for things that haven’t happened. And if he really meant that, he’d ignore 9/11. 9/11’s looking backward on Osama bin Laden. He’s ancient history. Then forget about it. Yet he’s got thousands of troops where? In Afghanistan, ’cause he’s not forgetting 9/11. So this is not even a serious argument. And this is too important an issue when the rule of law is at stake, who we are as a country, what character we want to display to other countries of the world. We care about the rule of law, and we care that other countries recognize that we have character that distinguishes us.

JAY: Okay. So if you were an adviser to President Obama, what would you advise him to do now?

FEIN: I would advise him to look at all of the circumstances and see. If you really think that right after 9/11 the pressure cooker was so great and the uncertainty so great, you need to pardon him, if you think that’s true, and explain it to the American people, why pardons are needed. Now, of course, when you issue pardons, they have to be accepted, Paul. When you accept a pardon, you are agreeing that you committed a violation of law. So it doesn’t set a precedent, like the current ignorance of law is, that this is actually legal, or you accepted it, you did wrong, it’s not going to recur. That’s what I would do. But on the other hand, if you look at the circumstances, because many of these continuationed interrogation practices continued long after 9/11 when we weren’t in that crisis atmosphere, “You’ve got to decide in 30 seconds,” then I’d say that we have to prosecute these people at the very top. You don’t go to the bottom; you go to the people who made the policies.

JAY: And what’s the process now?

FEIN: The process is very simple. You would take the statements of Mr. Bush and Mr. Cheney, which they’ve openly acknowledged, saying, “We authorized waterboarding.” You present that to a grand jury and say, “Here’s what’s the statute says. This is what the president has said. This is what the vice president said.”

JAY: So it doesn’t require a special prosecutor.

FEIN: No, you don’t need that at all. You don’t need a special prosecutor to do this. This is what the obligation is of the ordinary Department of Justice every day of the week. And it runs like any other criminal prosecution. That’s how the system’s supposed to work. In some sense, the requirement of a special prosecutor [inaudible] case, you don’t have faith in the honesty and integrity of your own people.

JAY: So, when Bush and Cheney went on television and admitted to this, it was actually a tactic, I guess you could say, to make Obama have to take a position one way or the other. They kind of cornered him. But now that he blinked—.

FEIN: I think they knew he would blink. These guys are not stupid. No one would go out and plead guilty to torture if they thought they were going to get prosecuted. You know, that’s just not how Washington works. Bush and Cheney have very high-powered legal advisers around. Any lawyer would say, you don’t say that you are conceding that you’ve committed a crime, unless you had assurances, whether it was express or otherwise, “Hey, they aren’t going to go after you. He just wants to campaign on Toscanini-like noises throughout the congressional corridors. We don’t want to hear any dissents. He’s worried about the right-wing Republicans [inaudible]

JAY: Now, Cheney and Rove have been on Fox the last few days, slamming Obama for even releasing the memoranda.

FEIN: Yeah.

JAY: What do you make of what they’ve been saying?

FEIN: Well, number one, they’ve said that. At the same time, they say he should release more memoranda, namely all the great success stories that are classified of all the things that were prevented because of the torture. Now, one of the things that I’ll mention about his claim that he had great success in preventing Americans from dying because he authorized the tortures, that I go back [inaudible] why then did you stop it? Mr. Vice President, why didn’t you ever stop it? Why, to the very last day, weren’t you insisting that the waterboarding continue not 283 times but 500 and 1,000 times if it was so successful? Why didn’t you do that? And, moreover, he doesn’t understand what the United States is about. It is self-government. We the people are sovereign. We have a right to know what’s happening in our own government, because the people have a right to tell the president, “You can’t commit torture. We are going to enact a law. If you do it and you practice it, we’ll impeach you.” You can only do that if you know what your government is doing. You can’t have self-government with secrecy, because the people have to decide whether they approve or don’t approve. How can you prove something that you don’t know is going on? So we should have had those memoranda long ago. Why did Obama wait till a lawsuit was brought? He should have given them out right away, ’cause we get to decide. People say, “Well, but you maybe give an edge to the enemy. They will know some of our tactics.” That’s right, ’cause we are not like the enemy. Even if they get a small edge, that’s part of the price you take of being a democracy and making those moral judgments yourself. And I will pay that price, and other people, I think, would pay that price. We decide whether we want waterboarding, not somebody who isn’t going to have their kids out there and captured and maybe waterboarding themselves. We are the ones whose character is shown by the practices we have. We get to decide, ’cause we’re the people, the highest office in the land, where all sovereignty resides. And this idea that “oh, no, only the president decides” is wrongheaded. It inverts the conception of a republic. No. The highest office in the republic is us, not the guy at the top. He’s our echo. He is somebody who represents us. We can withdraw our consent anytime.

JAY: Thanks very much for joining us, Bruce. Thank you for joining us on The Real News Network.

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