(updated below)
David Rivkin and Lee Casey are right-wing lawyers and former Reagan DOJ officials who, over the last eight years, have been extremely prolific in jointly defending Bush/Cheney theories of executive power. Today, they have one of their standard Op-Eds, this time in The Washington Post, demanding that there be no investigations or prosecutions of Bush officials. Most of the arguments they advance are the standard platitudes now composing Beltway conventional wisdom on this matter. But there is one aspect of their advocacy that is somewhat remarkable and worth noting.
Rivkin and Casey have long been vigorous opponents of the legitimacy of international tribunals to adjudicate crimes committed by American officials. In February, 2007, they wrote an Op-Ed in the Post bitterly criticizing Italian officials for indicting 25 CIA agents who had literally kidnapped a Muslim cleric from Italy and "rendered" him from Milan to Egypt. In that Op-Ed, the Bush-defending duo argued that Italy had no right to prosecute these agents (h/t reader tc):
An Italian court announced this month that it is moving forward with the indictment and trial of 25 CIA agents charged with kidnapping a radical Muslim cleric. These proceedings may well violate international law, but the case serves as a wake-up call to the United States . . . .
[T]he United States must still vigorously resist the prosecution of its indicted agents. . . . [I]t is up to American, not Italian, authorities to determine whether any offense was committed in the capture and rendition of Nasr.
Unfortunately, the effort to prosecute these American agents is only one instance of a growing problem. Efforts to use domestic and international legal systems to intimidate U.S. officials are proliferating, especially in Europe. Cases are pending in Germany against other CIA agents and former defense secretary Donald Rumsfeld -- all because of controversial aspects of the war on terrorism. These follow Belgium's misguided effort to pursue "universal jurisdiction" claims for alleged violations of international law, which also resulted in complaints against American officials including Vice President Cheney and former secretary of state Colin Powell. That law was amended, but the overall problem is unlikely to go away. The initiation of judicial proceedings against individual Americans is too attractive a means of striking at the United States -- and one often not subject to control by the relevant foreign government.
Accordingly, Congress should make it a crime to initiate or maintain a prosecution against American officials if the proceeding itself otherwise violates accepted international legal norms.
So it's up to the U.S. -- not any foreign tribunals -- to prosecute war crimes and other felonies committed by American officials (for reasons that, at least in part and under certain circumstances (not prevailing in the Italian case), I find persuasive). In fact, they argue, international prosecutions are so illegitimate that such proceedings themselves should be declared crimes. Indeed, like most of their political comrades, Rivkin and Casey have consistently argued that U.S. jurisdiction over alleged violations of international law and U.S. treaties by U.S. citizens -- including our leaders -- is exclusive.
They made the same argument when opposing U.S. ratification of the enabling statute of the International Criminal Court (.pdf), arguing that "[t]he question is whether [international] law can, or should, be enforced outside national legal systems that have generally functioned well." Their answer, of course, is that, when it comes to Americans, international law obligations cannot and shouldn't be enforced anywhere but America:
There are many problems with the Rome Treaty. The most immediate one, for Americans, is the danger of its being used as a political instrument against us. But the most profound flaw is a philosophical one: The concept of "international" justice underpinning the ICC project is more apparent than real. . . .
The prosecution of political leaders is inherently political, and there are at least two sides to every political conflict. . . . From America's perspective, the greatest practical danger of joining the ICC regime would be that the court, driven by those who may resent American global preeminence, could seek to restrain the use of U.S. military power through prosecutions of U.S. leaders.
They then went on to call for the Bush administration to vocally and decisively reject the legitimacy of the ICC so that the whole edifice would collapse. This is because American leaders should not be subjected to prosecution in foreign countries for their crimes -- only in America.
Yet what do these two argue today? That domestic investigations and prosecutions -- by American tribunals and American courts -- are also inappropriate, illegitimate and destructive. Though they acknowledge that "the Justice Department is capable of considering whether any criminal charges are appropriate," they nonetheless insist that this must not be done:
For his part, President Obama has reacted coolly to calls to investigate Bush officials. Obama is right to be skeptical; this is a profoundly bad idea -- for policy and, depending on how such a commission were organized and operated, for legal and constitutional reasons. . . .
Attempting to prosecute political opponents at home or facilitating their prosecution abroad, however much one disagrees with their policy choices while in office, is like pouring acid into our democratic machinery. As the history of the late, unlamented independent counsel statute taught, once a Pandora's box is opened, its contents can wreak havoc equally across the political and party spectrum. . . .
Obama and the Democratic Congress are entitled to revise and reject any or all of the Bush administration's policies. But no one is entitled to hound political opponents with criminal prosecution, whether directly or through the device of a commission, and those who support such efforts now may someday regret the precedent it sets.
So no international tribunals or foreign countries have any power to investigate or prosecute American officials for war crimes (even when those war crimes are against citizens of those countries and/or committed within their borders). And, American political officials must also not be prosecuted inside the U.S., by American courts. "Nobody is entitled" to do that either, because "attempting to prosecute political opponents at home or facilitating their prosecution abroad is like pouring acid into our democratic machinery."
The implication of their argument -- which is now the conventional Beltway view -- is too obvious to require much elaboration. If our political leaders can't be held accountable for their war crimes and other serious felonies in foreign countries or international tribunals, and must never be held accountable in the U.S. either (because to do so is to "pour acid into our democratic machinery"), then it means that American political officials (in contrast to most other leaders) are completely and explicitly exempt from, placed above, the rule of law. That conclusion is compelled from their premises.
At least to me, it's just endlessly perplexing how anyone -- let alone our political class in unison -- could actually endorse such absolute lawlessness for political leaders. Didn't our opinion-making elites learn in the eighth grade that the alternative to a "nation of laws" was a "nation of men" -- i.e., the definition of tyranny? Those are the only two choices. It's just so basic.
Apparently, though, this is all fine with our political establishment, since none of this is new. Here's what Iran-contra prosecutor (and life-long Republican official) Lawrence Walsh said in 1992 after George H.W. Bush pardoned Casper Weinberger days before his trial was set to begin:
President Bush's pardon of Caspar Weinberger and other Iran-contra defendants undermines the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office -- deliberately abusing the public trust without consequence.
Weinberger, who faced four felony charges, deserved to be tried by a jury of citizens. Although it is the President's prerogative to grant pardons, it is every American's right that the criminal justice system be administered fairly, regardless of a person's rank and connections.
The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger. . . . Weinberger's early and deliberate decision to conceal and withhold extensive contemporaneous notes of the Iran-contra matter radically altered the official investigations and possibly forestalled timely impeachment proceedings against President Reagan and other officials. Weinberger's notes contain evidence of a conspiracy among the highest-ranking Reagan Administration officials to lie to Congress and the American public. . . .
In light of President Bush's own misconduct, we are gravely concerned about his decision to pardon others who lied to Congress and obstructed official investigations.
Does anyone deny that we are exactly the country that Walsh described: one where "powerful people with powerful allies can commit serious crimes in high office -- deliberately abusing the public trust without consequence"? And what rational person could think that's a desirable state of affairs that ought not only be preserved -- but fortified still further-- as we move now to immunize Bush 43 officials for their far more serious and disgraceful crimes? As the Rivkin/Casey oeuvre demonstrates, we've created a zone of lawlessness around our highest political leaders and either refuse to acknowledge that we've done that or, worse, have decided that we don't really mind.
UPDATE: In a world in which the Rivkin/Casey mentality dominates (i.e., the world in which we actually live), imagine that you're the American President, sitting in the Oval Office, tempted to issue a secret order that you know directs that laws be broken. What possible pragmatic motive would you have to refrain from doing that? Wouldn't any rational person in that situation think to themselves:
There's nothing that would stop me from doing this because, fortunately, we live in a country where the President actually has the right to break the law and to do so without consequences. In fact, amazingly enough, the citizenry -- or at least the opinion-making elite -- has somehow become convinced that it's a good thing -- vital even -- for the President to have this lawbreaking right and to be shielded from consequences when he commits crimes. I don't know how that they got convinced of that, but that's actually how they think. As strange as it is, I know that if I decide to commit this crime, political and media figures from across the political spectrum will join together to insist that there must be no consequences for what I have done.
Ironically, while there is consensus horror in America's political class over the idea that our political leaders might be charged and tried in the U.S. (let alone a foreign country) for their torture and other war crimes, we -- Americans -- have adopted a statute that expressly arrogates unto ourselves the power to do exactly that to leaders of other countries, and the Bush administration -- even as they presided over their own torture regime -- actually invoked that law to pursue such prosecutions. After a torture prosecution of a Liberian official last December, Bush's Attorney General, Michael Mukasey, actually spoke these words -- what very well might be the most audaciously hypocritical quote of all of 2008:
Law without conscience is no guarantee of freedom; that even the seemingly most advanced of nations can be led down the path of evil; and that we must confront horror with action and vigilance, not lethargy and cowardice. . . .
His conviction – the first in history under our criminal anti-torture statute – provides a measure of justice to those who were victimized by his reprehensible acts, and it sends a powerful message to human rights violators around the world that, when we can, we will hold them accountable for their crimes.
No torturer is safe from American judicial accountability -- as long as the torturer is not an American political official.
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