Obama Should Pardon the War Crimes Committed Under Bush
President Barack Obama has released the "Torture Memos" that make it clear that it was the policy of the Bush Administration, including George W. Bush, Dick Cheney and Donald Rumseld, the military and the CIA to torture prisoners, even though international treaties and US law clearly forbid the torture of prisoners. But, Obama says that, in order to move forward with a clean slate, we have to 'forgive and forget' the war crimes committed by Bush and those who served him.
If Obama really believes that, then he should offer a blanket pardon for all war crimes committed during the Bush Administration. Presidential pardons are the Constitutional tool President Obama has at his disposal to "forgive and forget" the attrocities that occurred when Bush was president.
I've just read the January 9, 2002 "Torture Memo" of George W. Bush's Deputy Assistant Attorney General John Yoo, which makes it clear that the Government was contemplating torture, reviewed the applicable law, and determined that torturing prisoners would be illegal under every relevant reading of the Geneva Convention. However, addressing the question of whether the United States Government was prohibited by the Geneval Convention from torturing prisoners from Afghanistan, and whether the US's 1997 War Crimes Act reasserted and strengthened the provisions of the Geneva Convention against torture, Yoo determines that although the clear language of the Convention and Congressional Act and decisions by international courts forbid torture under all circumstances, nonetheless YOO's fresh interpretation of the history of the Geneval Convention and reference to its 'orginal intent' allow the US to torture prisoners regardless of everything that the the Convention and War Crimes Act say to the contrary.
Yoo reviews at length the Geneva Convention international treaty against torture that the US Senate approved and the US Government entered into, and he reviews the War Crimes Act of 1997, duly passed by both houses of Congress and then signed by the president of the United States for the purpose of making clear that the US adheres to the Convention and broadens its effect. No one in the Bush Administration can claim they were unaware of these treaties and laws once having read the summary by Yoo.
In Yoo's torture memo, he acknowledges that the Geneva Convention and the War Crimes Act forbid torture, and he even cites the Tadic case decided by the International Tribunal for the Former Yugoslavia, which YOO acknowledges:
appears to take the view that [Geneva Convention] Article 3 applies applies to non-international armed conflicts of any description . . . a catch-all that establishes standards for any and all armed conflicts not included in Article 2 [of the Geneva Convention].
Yoo and everyone who read his memo understood that all previous readings of the applicable rules prohibited what the Bush Administration was doing. And Yoo even refers to a decision by the International Court of Justice which stated that all armed conflicts are covered by Article 3 of the Geneva Convention, and therefore also by the US War Crimes Act, which makes it a US federal crime to violate the prisoner protections of the Geneva Convention:
Article 3, which is common to alll four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to aply to international conflicts; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called "elementary considerations of humanity".
Since the International Court of Justice found against the United States in Nicaragua v. United States, which Yoo cites above, it's obvious that Yoo knew full well that the International Court of Justice would certainly not approve of even more egregious behavior than that of which the US was found liable in a previous case.
And yet, after reviewing a raft of international treaties, US laws and judicial decisions that forbid torture under and any and all circumstances, Yoo then proffers YOO's interpretation of the original intent of the Geneva Convention and YOO's interpretation of Congressional intent in enacting the War Crimes Act and Yoo announces that the United States can ignore international and US laws and torture Afghanis without concern for the Geneva Convention and the War Crimes Act.
Having taken a close look this, President Obama believes the most important thing now is to focus on the present, and to forgive and forget the war crimes committed under Bush, after Bush was advised that he would be violating but could safely choose to ignore international and US laws, courts and justice.
Now, to effectuate President Obama's "forgive and forget" policy, Obama should announce that he knows that the United States Government was full of officials, from George W. Bush on down, some still working for the Government, who could be found guilty of war crimes under the War Crimes Act, and could also be tried in the Hague, and these people also engaged in acts that could be prosecuted under US "conspiracy" laws, but Obama will nonetheless pardon these people because trying them for what they did would be too much of a distraction from the Government's real priority: making and enforcing laws.
While Obama is at it, he should pardon every civilian who raped or murdered someone during the Bush Administration, since trying and imprisoning them now is just as distracting as trying the former president. And pardoning all those civilians who raped and murdered others during the Bush Administration would have the advantage of saving hundreds of millions of dollars that would otherwise be spent maintaining jail beds, the only disadvantage being that getting away with rape and murder committed before might encourage those pardoned to rape and murder again at some time in the future.
Nonetheless, if Obama wants to get the war crimes behind us, he has the constitutional tools at his disposal: a blanket pardon for all war crimes committed by George W. Bush, Dick Cheney, Donald Rumsfeld, and all members and employees of the Bush Administration and every department of the US Government for any and all acts of ordering or engaging in torture (and why not throw in military contract fraud and embezzlement as well?).
However, Obama should keep in mind that if the American people wanted to pardon the acts of Bush, Cheney, Rumsfled and their underlings, then US voters could and would have elected John McCain instead.
Cross-posted at the Francis L. Holland Blog.