Obama Should Pardon the War Crimes Committed Under Bush

by francislholland | April 18, 2009 at 08:46 am

628 views | 26 Recommendations | 9 comments

'Let's Forgive and Forget'

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.

0 See all footage | View Slideshow

Share: email story | add to any | | facebook | stumbleupon

recommend This comment thread is now closed

francislholland

at 08:55 on April 18th, 2009

Excellent commentary!

Barbara McPherson

at 09:04 on April 18th, 2009

If the present administration in the US does not act on this, they will have failed to achieve any moral authority. It may well fall to the world court to prosecute. Thank you for posting this.

African American Political Pundit (not verified)

at 13:02 on April 18th, 2009

Great post Francis! Keep on posting here.

djermano

at 19:55 on April 18th, 2009

You suggest Obama pull a Gerald Ford.......a guy who also wished to allow criminals walk...and to protect the Fraud and Corruption that has been handed down from one President after another since Harry Truman.

You are clearly wrong to suggest Obama pardon these acts... That is you suggest Obama become like them....the wanted from Justice.... I might add I think he is no naive kid....and is either being paid off under the table by Republican Bush cohorts, or has been threatened....not to tread on the lie they built up. I too think it tells much of his character when he dumped Rev. Wright....a guy who told the truth. It befuddles me to think Obama can wear his blinders when it comes to history, and not making ammends for crimes in the past....In doing so how far back do you go with the prosecutions? I would say that he should concentrate on the present link to his administration....and when that bundle receives its Judicial Justice, then a complete past administrations stamp of review and prosecutorial process would go forward. Many lawyers are afraid to take this on...with the fear that many are dead and have gone to their grave. They fear they will become subjects of mockery, and their careers will be ruined.... Just like what Obama did when he rebuke Rev. Wright. But Rev. Wright's career is blossoming at the moment....while President Obama is sinking, as people see through his facade of lies, and snowballing friendly guy rhetoric. I know if I was President I would be reminding people of why Truman was wrong, why Eisenhower was wrong, why Kennedy was wrong, why Lyndon Johnson was wrong, why, Richard Nixon was wrong, why Gerald Ford; then Jimmy Carter was wrong in starting the the Iraq Iran war, why Reagan was wrong, why Bush was wrong, and Bill Clinton, and GW Bush have had it all wrong.

He should prove he knows the difference to make change. How can he have a plank for change.....when he says nothing about where we all came from. Rev. Wright is no fool....and his sermons exemplifed what we needed to do to work away from the bad America has been engulfed with all these past years....

Obama's inability makes him nothing but a Pop Idol like the Osmonds.... bubble gum and ice cream.... Nothing wrong with that....but he needs to address the real life issues such as showing the world that we can not go on defending America and its criminal past..... There must be applied impeachment of Truman, Eisenhower, Johnson, Nixon, Carter, Reagan, GH Bush, Bill Clinton that failed....over sex...but he killed people, and GW Bush.

Truman started the chain reaction....the link that said killing innocent people is OK....and that collateral damage has no consequences. This parade of crime is handed down from one generation to the next....and someone needs to stand up there in Washington and proclaim that this will not go on.....and that all the leaders since Truman to Obama.....are held in dishonored esteem....and impeached stamped across their Adminstrational historcal crimes records..

This would be the era of the new America.....when truely America has begun, has become to find its true self and identity. From that moment the Presidental cleansing will take place....and God will shine through to bless our awakening.....

But President Obama has no inner conviction, no sense of the chain reaction of crime that has pulled America down into the cavern of hate and revenge. Perhaps he can not handle the volumes of information, the volumes of evidence that affect his own character. He either rebukes the bad, the crimes, the misery, the neglect, the stonewalling or be recognized as one of them. There is no honor in pardoning, when prosecution has not been administered. There is no honor when the United States has a protracted history of crimes committed against humanity, and then to ignore those crimes...goes to show there is no law in America. They protect the wealthy from prosecution for the sake of their own illicit fantasies, and to hell with the people of the United States.

At this moment I see Obama as one of them...not to be trusted....nothing but another lie....nothing but; an Uncle Tom...a stand in... to proclaim America is not a bigoted or corrupt State. I think it is rather late...It took all those years since Lincolns' ending of slavery to have a black President.... makes him more of a laughing stock....to America's historical blunders and incompetence....He needs to face truth...and exemplify its higher educational awareness.

Proud to be an American means to be able to recognize the blunders, and apply the medicine of justice on the record....that would be to move the crimes from past administrations...from the legitmate history books, into their rightful place in the Criminal History Books. We shall no longer live in the blurr, that doing right is to do wrong. That killing innocent people is a forgotten experience....Yet we place wreaths at Tombs of Unknown soldiers....and honor Vets who slaughtered innocent people....so we could wave flags around a Whitehouse....and proclaim how great we are as a people, and how free we are, while the dead and murdered still lie in their graves from Hiroshima, to Nagasaki, to Korea, to the villagers in Mai Lai..in Vietnam.....and in between to Kuwait, Israel, and the Millions killed in Iraq....from our doing...

No America is not great until we do this..... America is not to be trusted until we do this.....America has no honor or distinction when it turns its head away from its victims....

You should be ashamed of yourself.....

Rev. Jermano

francislholland

at 15:51 on April 19th, 2009

Rev. Germano, I wish you had read my entire article, because if you had you would have discovered that I agree with you and the title of my article is an example of hyperbolic sarcasm. The article makes it clear that the title was not intended as a statement of my opinion, but rather as a statement of a proposition so absurd that it highlights how ridiculous the "forgive and forget" policy is. I predict that the "Forgive and forget" policy will prove to have the historical ridiculousness and moral vacuousness of "Don't ask, don't tell," particularly as videos become available of the actual torture.

Nonetheless, I've softened somewhat since I wrote the above piece. If Obama tries to prosecute the liars and torturers of the Bush Adminstration, his entire first term and certainly most of the resources of the US Justice Department might be dominated by the effort. In the end, I suspect the Bush-appointee-dominated US Supreme Court might throw out any convictions Obama's Justice Department is able to win, and in the process enshrine in our Constitutional jurisprudence some propositions that are even worse caselaw than is now on the books, e.g., the proposition that, "Torture is OK if your boss tells you to do it." Obama has announced that he believe that, and the US Supreme Court might welll agree with him.

Unfortunately, Obama himself has added support to this view by announcing his reasoning for not prosecuting the individuals who conducted the torture. 'They were just following orders, so they should not be prosecuted.'

If we are to accept that proposition, doesn't that equally absolve those who personally placed Jews in the gas chambers during the Holocaust, since they were merely following the (morally bankrupt but then lawful) orders of Adolf Hitler? And isn't that the example we always use to prove the proposition that "just following orders" is not an excuse for behavior that is obviously immoral and illegal?

Maybe Obama is right that he should not prosecute the Bush Administration's people, but here's a much better reason than the reason he offered: Prosecuting the Bush Administration would make the Obama Administration's efforts "all about white men" for the next four years. Every day's newspaper stories would be about which white men would be prosecuted and when and how, with the end result most likely being that those who were convicted would get light sentences and their own talk shows on Fox News Network, as Oliver North did after he was prosecuted for the Iran Arms for Hostages Scandal. That's not much of a legacy for Obama to seek and it won't get him reelected. It might well be the reason he was not reelected, since a lot of the Independents whom Obama will need in 2012 might support torture now, or might have supported it when it was being carried out. And therefore a prosecution of the torturers might equally be a prosecution of the morals of the Independents whom Obama needs to win reelection. That's a cynical political reason why Obama might be reluctant to prosecute torturers.

However, there's another reason that is better: The majority of Americans - comprised by the nation's women (53%), Blacks (12.8%), Latinos (15%?), gays (10%?) and the disabled (?%)- would be much better served ultimately by focusing the resources of the US Justice Department on prosecuting hate crimes, discrimination, police brutality, profiling, and other ongoing acts. Prosecuting the white men of the Bush Administration for their crimes against Iraqis and Afghans might do nothing at all to improve the lives of the oppressed majority of the United States of America (see above), while also not immediately changing the way the US treats people overseas, since that's something Obama can do in his role as Commander in Chief, without prosecuting Bush Administration's personnel.

Meanwhile, getting bogged down in the (probably unsuccessful and fruitless) prosecutions of the torturers and their elected bosses might distract the Administration and the nation from implementing national health care, saving the national and international economies from ruin, and reducing pollution, all of which affects many millions more Americans and people in other countries in a much more immediate way.

Instead of announcing that he would not prosecute CIA and other torturers, Obama should have left the threat of investigation, indictment and prosecution for war crimes hanging over all of their heads, including the leaders within the Bush Administration who ordered the acts of torture, and Obama should use that pressure to compel Republicans to support Obama's priorities in the present.

To vindicate the principal that torture can never be tolerated, Obama should prosecute ONE individual like Rumsfeld for war crimes and conspiracy, to make a point, while encouraging the Hague to prosecute everyone whom the Hague sees fit to prosecute. Obama can also support new laws that make torturers and their bosses civilly liable, and then let the public in the US and overseas go after the torturers.

Ultimately, Obama needs to find a way to reassert and vindicate the rule of law, without losing reelection and/or foregoing his own present-day domestic and international programs in the process.

djermano

at 21:19 on April 19th, 2009

Well Mr. FrancisHolland, what I can say is I read your entire article...One thing I have learned is never use sarcasm when you are serious about making your point. I see you are as upset that Obama does not go after these people. The fact is Obama has powers he is unaware of using....such as using the money that supported Guantanemo to use in the prosecution of Bush and Cheney. In fact I am sure many Senior and Junior Law Officials would volunteer their time to help in the efforts.

Your tone of sarcasm was not enough to make me believe you did not believe in your title. Given your last comment...that should have been your article of reason....But foremost I fail to believe that your reasonings are sound in not having the President speak out with supporting groups that can go after the crime hawks. You give the example to the Supreme Court with its sway to the decision process and that may occur....but it is not unreasonable to suggest that because of the Crime Organization that has infiltrated the US government that said Justices who would support Torture are as likely to become members of impeachment of their post as well.

The idea we can not go after the bad guys who tanked the economy, because of so many other issues is case in point that the US Government can't work...

I do not support the idea that it would turn into a racial issue, because there are too many white people who support the ways and means to prosecute Bush and Cheney for war crimes. You are clearly wrong about that. In fact it is quite the opposite. The Bush and Cheney crew know you are afraid to go after them, and nobody will point the finger at Obama for not doing so....because they know if they do.....they will be accused of racism by the blacks who hold power. Obama gives them a lock and key safety lock toward the race issue, because no one will prosecute Obama because of the race issue. In fact to suggest impeaching the first black President after being the first black elected for obstructing the process in prosecuting Bush is very unlikely and laughable... This is why I supported Hillary for President at the time, because I knew they would use that to prevent and insulate themselves from prosecution. The Republicans knew they had it in the bag, when Obama won the Democratic Nomination....They could have cared less if McCain won....why do you think they picked Palin? To sway the vote to Obama. It was a better pick for them.

I might also add that prosecuting Bush and Cheney would also see some Justice toward the lies about 911 and their real involvement in that. I think if Obama started a commitee to seek prosecution of Bush and Cheney...you will find a ground swell of support, if not more to all the other concerns.

The approach you are taking appears as if you are avoiding.....and all the efforts you make in the other areas you are thinking about will ultimately fizzle... It's like having machine gun fire rain down on you in a battle field. Instead of going after the gunner to stop the attacks, you think it is better to save our ammo and supplies to take care of the injured....While you have managed to get out of the way of fire by appearing that you have sympathy for the gunners, they sit up in their bunker eating and playing cards....while you are scrambling around with excuses to why you should not prosecute them. That is the issue.

Obama should state he wants to go after Bush....and Cheney...and I guarantee his chances of reelection will be in the bag. His game plan now makes him appear as a member of the Bush Doctrine....and although I voted for him....will not vote for him....unless he comes out against Bush and Cheney.

Obama has the support of world leaders...and I assure you they support the indictment and legal process against Bush... Obama needs to take on the obvious and stop this BS pussy footing avoiding the need to seek Justice. If anything people will be glued to the news, more engaged to see that those sob's get their time.

I am a white guy...and I have no problem in seeing justice being brought to Bush and Cheney.. They did wrong....and by God there is no excuse to allow the continued Corruption to go on unabated. If Obama does not...he merely reinforces the broken concept of law. He becomes another Gerald Ford....he becomes a part of the problem. The key in Obama's success is to go after Bush and Cheney... It is not just Obama's decision...it is the will of the people. Americans are sick and tired of being used by these crooks, and ruining our reputation at home and abroad. This is the hope we are looking for. Believe me....there will be much excitement and enthusiasm to really get the change.

But is it how you say it is? Barak reappointed Gates, and all the Wall Street Gang to run his administration....He has no real power until he starts to reshuffle that erroneous problem as well.

God Bless,

Rev. Jermano