I believe this summary is reasonably accurate though
very incomplete. A fuller summary, like access to the entire proceedings
themselves, must await the preparation of DVDs of the conference,
transcripts of it, and/or the publication of the proceedings in
book form. The DVDs, which will not only be available as DVDs,
but will also be put on the internet by MSL for viewing by computer
and will be made downloadable by iPods, should be available in
a matter of weeks. Transcripts, which will also be placed on line
by MSL, will take a bit longer, and a book longer still. But these
various means of modern communication will make the proceedings
available in several ways for teachers, classes, and citizens
who are interested in the subject of growing presidential power
and want to know what some of the leading experts think.
One would especially hope that the materials will
be used in colleges and universities. War, particularly long,
protracted wars, are the most affective upon this nation of all
human events. What the Civil War and World War II meant for the
daily lives of millions of citizens should be known and immediately
comprehensible to any American who knows any history (a qualification
which, I gather, would exclude most citizens these days, which
is disastrous for the nation). Even wars that are less cataclysmic,
though nonetheless long and major, have the most serious effects.
Perhaps I can do no better in this regard than quote the opening
paragraph of a book I wrote 36 years ago about the Viet Nam War:
“Vietnam.” The very name is associated with crisis.
For as even the least perceptive among us must know, the war in
Vietnam has contributed a goodly share to several of the highly
serious and deeply troubling crises which have been plaguing the
United States. Most of the crises which have been caused or exacerbated
by the war have been very noticeable to the public, and the war’s
effect upon them has been no less noticeable. For example, it
is difficult to escape knowing that America has faced serious
economic problems, such as inflation and balance of payments difficulties,
which have resulted at least partly from our vast war expenditures.
Equally apparent is the fact that the war has fueled a generation
gap which has pitted many of our young people against many of
their elders: the contending groups are locked in mutual lack
of understanding, mutual distrust, mutual dislike, and mutual
immoderation. It has been only too obvious
that energy and money which have been poured into the war might
otherwise have been spent to combat the poverty and urban decay
which so plainly threaten our cities. By this diminution of the
efforts to combat poverty and decay, by leading many blacks to
bitterly, and perhaps even rightly, believe that the white man
is perfectly willing to let them die for America in Vietnam but
is not terribly willing to let them have adequate jobs or schools
or houses in America itself, and by raising other difficulties
both practical and ideological, the war has clearly heaped fuel
upon the fire of an obtrusive racial crisis. The climate for lessening
explosive international tensions plainly has suffered because
of the war. And, unfortunately, this list of examples does not
exhaust the catalogue of highly noticeable crises to which the
Vietnam war has made a high, noticeable contribution.
Even a war like Iraq which does not on an immediate
level engage most Americans, a war whose burden falls on relatively
few, a war which the President reprehensibly and for political
purposes has “responded” to by telling people to go on living
their lives in the ordinary way, creates havoc despite its lack
of practical effect on most people. Our politics, our civil liberties,
our now longstanding, well warranted disdain for government have
all been worsened by the present botching by Bush.
Plainly, the causes, reasons for, and ways of avoiding
and getting out of war are subjects which the colleges and universities
of this country should study and teach. One of the most affective
phenomena in getting our country into one war after another has
been precisely the growth of presidential power that was discussed
at the conference at MSL. Such growth is, for this reason as well
as others, one of the crucial subjects for colleges and universities.
Thus, to reiterate, one hopes that they will make use of what
will soon be the wide availability of the materials from the conference
held on October 14th and 15th.
* * * * *
The matter of the immunity provided to criminals
in the recently enacted Military Commissions Act of 2006 raised
especial ire at the conference. For the first time in American
history, the Congress has provided immunity for the perpetrators
of torture -- even murderers by torture -- and other horrible
crimes, e.g., kidnapping even innocent people off the streets
and delivering them to countries like Syria and Uzbekistan for
torture.
The provision which immunizes this awful conduct,
you know, did not receive nearly as much media coverage in advance
as did the habeas corpus and military tribunal provisions of the
bill. That, at least, is one man’s opinion, and in fact I think
it received but little coverage. It basically was snuck in and
enacted mainly by stealth - - not exclusively by stealth, but
mainly by it. No doubt the stealth served the Executive’s purposes
perfectly. For were it to have come extensively to public notice
that for the first time the Congress was granting immunity to
serious crimes, there might have been an outcry. Indeed, there
almost surely would have been a vast outcry on the left and perhaps
in the center as well, had most persons on the left and in the
center known what was happening. (Maybe I am wrong but, as you
can see from the foregoing remarks, my view is that there was
relatively little public comprehension of what was occurring.
This view seemed borne out even at the conference of experts on
presidential power: even experts did not know what was going down.)
Bush, having desired, authorized and known about torture from
the beginning, and therefore being guilty of felonies under the
domestic American law known as the Anti-Torture Statute, must
have been perfectly delighted that the immunity provision was
able to fly under the radar. One of the points made at the conference
was that evil, like mushrooms, grows in the dark. Secrecy is,
for certain, the handmaiden of evil. Flying under the radar is
perhaps next best to enforced secrecy itself.
But now that the immunity provision has been enacted,
just what does it mean. That is, exactly whom does it cover, and
for what acts. I confess to not understanding it completely. It
is written in lawyerese, with exceptions delimited by numerical
references to other statutes entirely. The media seem generally
to say the act gives immunity to the CIA but not the military.
Maybe that’s right, although the wording would seem broad enough
to cover the military and all other relevant persons too (unless
the exceptions clause at the beginning of the relevant section
means the military are not covered). But search me as to who’s
covered. It would be nice if someone knowledgeable would explain
exactly who is, who isn’t and why.
To given you more information of relevance, the
Act says that (with exceptions that are unclear to me) “no court”
“shall have jurisdiction to hear or consider” any action against
the “United States or its agents relating to any aspect of the
detention, transfer, treatment, trial, or conditions of confinement
of an alien who is or was detained by the United States and has
been determined by the United States to have been properly detained
as an enemy combatant or is awaiting such determination.”
This language would not seem to give complete immunity
to BushCo and his fellow cohorts in the Executive, as will be
discussed below.
Let us start with something the language does not
do. It does not say that what BushCo and his tribe of corporate
henchmen authorized, desired and/or did is not a crime. Torture
of persons abroad remains a felony under federal law, although
the new Act removes the jurisdiction of courts to hear cases on
the crime and has thus eliminated courts’ ability to punish perpetrators.
For the layman it will doubtless be hard to grasp how there can
be a crime when an act cannot be punished. Such legal absurdities
are common; they occur, for example, when a statute of limitations
has run, even on murder. Beyond this, there will remain, as we
shall see, certain situations in which it seems the cohorts are
chargeable with crimes and punishable -- and can be made defendants
in civil actions too. As well, authorizing torture, as BushCo
did -- and which led to murder -- of course remains an impeachable
offense. “All” that is lacking in this regard is political will
and native intelligence: Apparently it was no good for Bill Clinton
to receive fellatio in the oval office -- which surely was a disgrace
-- but it is alright for BushCo to authorize torture and murder
there.
The statute also grants immunity only when the tortured
person is an alien. Now, this may be of little practical import
because most of the people we tortured were aliens. But perhaps
not all. It is possible that a few people whom we tortured abroad
were Americans. (Did we torture John Walker Lindh abroad? There
are some who in effect claim so, I think.)
Then there is also the question of actions by states,
or by individuals, under state laws if torture was authorized,
conspired about, or committed within a given state. (The federal
Anti-Torture Statute only applies to torture abroad; punishment
of acts committed in the United States was, I have read, left
to state laws against assault, battery and murder. No doubt the
Executive cohorts and their lawyers would argue that, when Congress
said that “no court” shall have jurisdiction to hear torture cases,
it included state courts as well as federal ones. But whether
this argument could withstand serious legal analysis is very questionable
(for much the same reasons that a federal law overriding state
“tort” laws against deliberate or negligent misconduct by manufacturers
that injures or kills people -- the kind of law sought by big
business’ tort lawyer shills -- is questionable). The founders
of this country would never have dreamed that a federal law could
override state laws against assault, battery and murder, and their
view certainly ought to prevail here.
The question regarding state court actions is not
in truth one of law. It is more a question of what state prosecutors
and state courts would or would not do as a political matter.
Practically speaking, it seems a safe bet that, at least today,
state prosecutors would not act against American torturers and
murderers, nor would state judges fail to find some reason, however
spurious, to dismiss cases brought by the tortured or by heirs
of the murdered. Whether or not all this will be equally true
ten or twenty years from today – indeed, whether the federal immunity
law will still be on the books ten or twenty years from now --
remains to be seen. For what people’s views will be when BushCo
is long gone remains to be seen. There have been major turnarounds
in view previously -- Massachusetts, Illinois, California (and
perhaps some other states too, if memory serves) ultimately tried
(albeit unsuccessfully) to assert state jurisdiction in order
to put an end to the Viet Nam War, attempting this in the face
of decades of belief that it could not be done. As the Attorney
General of New York, Elliot Spitzer began bringing successful
cases against Wall Street, cases of a type that had long been
thought the exclusive province of the federal government. One
never knows what people might be moved to do in future decades
if moved to utter disgust, as they likely will be, by what BushCo
did in the early years of the new century.
You know, it is possible that even today, and even
in the federal courts, the BushCo wall is starting to crack. There
is, of course, the deep, ever widening disgust with Bush’s incompetence
and malperformance that is threatening the Republicans’ current
hold on both houses of Congress. There is the media’s willingness
to call BushCo the inept that he is -- and always was. (Recently
one read two comments by Richard Cohen, in The Washington Post’s
National Weekly Edition, that echoed points which have been made
here for years: Citing the recent book by Bob [The Egomaniacal
Bore] Woodward, as well as “everything else I’ve read about the
43rd president,” Cohen said it was “apparent” that Bush “had no
accomplishment to his name that did not stem from primogeniture.”
He also cited Bush’s “steadfast belief that his is a divine mission.”)
And even the courts are not rolling over and playing dead quite
so rapidly. Recently a number of federal judges, in addition to
Anna Diggs Taylor, have refused to immediately and with no questions
throw out cases challenging the electronic eavesdropping on the
governmental claim that the publicly admitted eavesdropping is
a state secret. The other judges don’t have Judge Taylor’s background,
so their views have a more tentative, cautious, well-maybe-the-president-is-the-king
quality to them, and maybe they will ultimately throw out the
cases, but the fact remains that they did not dismiss them out
of hand, as one would have thought likely.
So what will happen years from now, what people
will think and do then, remains in the womb of time.
Then there is the point which one thinks the most
important of all with regard to the wording of the immunity statute.
The law says no court shall have jurisdiction to hear any action
relating to the treatment of a past or present alien detainee
who “has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such determination.”
This looks to me to possibly be a hole big enough through which
to drive the proverbial truck.
Now, I don’t know any of this for certain, but aren’t
there a lot of people who were detained, tortured or rendered
for torture, and then released because ultimately considered to
be innocent of any misconduct against the United States? Were
these people ever “determined” “to have been properly detained
as an enemy combatant”? If so “determined,” by whom, where and
when? -- weren’t there in fact a lot of captives who never went
before any tribunal? Or, if they did go before a tribunal, lots
of them were found innocent, weren’t they? -- Otherwise why have
they been released? Were all of them released because they all
had suddenly become a threat no longer, even though they had once
been properly determined to be enemy combatants? Why do I doubt
this? The bottom line here is that it is entirely possible, it
may even be very likely, that there are lots of people who were
tortured and will still have a right to sue, despite the new immunity
statute, because they were never properly determined to be enemy
combatants and/or were even found innocent.
Perhaps Bush and company will claim that people
were determined to be “properly detained as an enemy combatant”
just because BushCo publicly said years ago that they were “enemy
combatants” (although we now know that lots of these people never
were combatants, but merely innocent guys who got swept up off
the streets). Such a BushCo-ian claim would, of course, make a
mockery of the statute’s apparent bow towards proper procedure.
(In fact, the whole military tribunals aspect of the statute is
a bow towards proper procedure.) In any event, we shall see what
the BushCo people claim and what the courts do.
It is conceivably worth mentioning in this regard
that the case of the Canadian whom we snatched and sent to Syria
for torture (Arar) and the similar case of a fellow named Khaled
El-Masri would seem to fit the situation. These guys were finally,
in practical effect, declared innocent and released. Did somebody
ever “determine” that they were “properly detained” as enemy combatants?
If not, shouldn’t they be able to sue Bush and company for the
torture they suffered, notwithstanding the immoral District Court
decisions dismissing their cases?
* * * * *
As the reader can see, there is a fair amount about
the statute that this writer does not understand. This is in part
because of the way statutes are often written, and the way this
one is certainly written. Instead of clearly stating what they
mean, for example, statutes will, as this one does in several
parts, obscurely say that some other statute is amended by substituting
some new word for some other word in some section of the other
statute. Or statutes will say that certain sections of some other
statutes constitute exceptions to the new one. Or they will trick
things up in some other way. It is all very confusing to the layman,
and equally to a lawyer who does not know and does not have time
to read and study all the other statutes and the particular sections
of them referred to. One frankly wonders about the morality of
this method of writing statutes, a method that seems designed
as much to hide the ball as anything else. (Of course, lawyers
will give you lots of reasons why these convoluted ways of writing
statutes are the only possible methods -- which I doubt, which
I, in fact, think plainly untrue.)
In any event, it would be useful for someone to
write some plain, easily comprehensible, knowledgeable piece about
what the immunity statute means -- who it applies to, whom it
doesn’t apply to, and when. Right now some of this seems unclear
-- and one wouldn’t be shocked if it had been deliberately kept
unclear lest lots of people learn what was being done and react
against it. But until I learn that my understanding of the statute
is wrong for some reason or is incomplete -- both of which are
entirely possible -- it will be this writer’s opinion that the
statute has some loopholes which lawyers and some of their clients
can use in an attack on Bush, the Yale flunk-out, the Winnetka
wrestler, and others of the utter bums, the truly bad human beings,
who have been running this country.
In one man’s judgment it is of the utmost necessity
that this nation begins looking for leaders who are honest, smart,
open minded, and moral, instead of being cohorts, thugs in suits,
bums, like our current leaders. The Kissingers of this world (and
we now have learned that the original Kissinger played a role
in the current debacle as well as the last one), BushCo, the Winnetka
wrestlers, the Yale flunk-outs -- none of these are honest or
moral, maybe none of them are open minded, a couple are not even
smart, and the one or two who are smart are evil – smart and evil
being a truly awful combination. Americans probably don’t like
to think about it -- instead we mostly like to think that any
regular guy can do a good job -- but this country had better start
looking to elect people who are honest, competent, smart and moral.
Otherwise, we are just headed for ever more trouble.
Frankly, the need to elect much better people, especially
to the highest offices, a need which is not often discussed, did
not to my recollection obtain mention, except for one brief comment,
even at the recent conference on presidential powers. That even
such a conference would not consider this need is a measure of
how far we have fallen in connection with the needed traits. It
strikes me that this need, too, is something which should be the
subject of inquiry, research and thought at colleges and universities.
The National Affairs column will appear in BC
every couple of weeks.
Lawrence R. Velvel is the Dean of Massachusetts
School of Law. Click
here to contact Dean Velvel.