December 23, 2008 – BLT – Legal Times Blog
Q&A: Jonathan Turley on Holding Bush and Cheney Accountable
George Washington University Law School professor Jonathan Turley is a leading constitutional scholar and commentator who has served as counsel for several defendants in terrorism and national security cases in recent years.
On talk shows and in print, Turley has argued in the last month that the Bush Administration should not be allowed to fade quietly from the scene on Jan. 20. He says top administration officials should be held to account for what he sees as criminal violations in connection with the torture of detainees, and its warrantless surveillance program. Turley (pictured at right) also asserts that if Eric Holder Jr., President-elect Barack Obama’s nominee to be attorney general, declines to view waterboarding as a crime, the Senate should not confirm him.
Earlier in December, Turley invoked the surveillance program in federal court as part of his appeal on behalf of Ali al-Timimi, a U.S. Muslim scholar convicted on terrorism charges in 2005. Turley claims al-Timimi was wiretapped under the program, and if he was, that it violated al-Timimi’s constitutional rights and spoiled the prosecution because it was withheld from his defense.
Turley answered questions by e-mail on how and why Bush officials should be prosecuted for their conduct during the last eight years.
What are the offenses of Bush Administration officials that you think need to be redressed or punished?
“The two most obvious crimes in this administration are the torture program and the unlawful surveillance program. Despite the effort to pretend that there is some ambiguity or uncertainty on these crimes, the law is quite clear.
“Waterboarding is not some new concept in the law. This torture technique goes back to the Spanish Inquisition and probably earlier. Courts in the United States, England and other countries have long held that waterboarding is not only a crime but a war crime. We prosecuted Japanese officers for this war crime in World War II. The English sentenced people to death for this form of torture.
“After the Spanish American War of 1898 in the Philippines, Major Edwin Glenn was court martialed and sentenced to 10 years hard labor for waterboarding an insurgent. The Senate denounced the practice. President Theodore Roosevelt dismissed a general for allowing his troops to waterboard suspects. “What is fascinating about this situation is that Congress and the Administration continue to pretend that they do not see a crime committed in plain view. However, the rest of the world sees an unambiguous war crime, particularly with Cheney casually discussing his role on national television.
“This could prove a bit of a problem when Bush, Cheney, and others travel after leaving office. While they would no doubt object to the comparison, there is a similarity with General Augusto Pinochet who was constantly faced with the threat of arrest during international travel. Home countries are generally given the first opportunity to prosecute for such crimes. When they fail to do so, international efforts often follow.”
What is the crime involved in the surveillance program?
“The law is equally clear. It is a felony to engage in warrantless surveillance of this kind. Congress has enacted two statutes that provide the sole means by which the government can obtain the necessary approval for electronic surveillance: Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C. § 2510 et seq., and the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq. Together, Title III and FISA supply “the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f) (emphasis added). One federal court in Detroit has already declared the program to be unlawful and we challenged the law in the Al-Timimi case.”
Which officials would you prosecute, and how low or high up the ranks would you go?
“I was asked this question last week by a member of Congress. My response was that the criminal law would extend to all who participated in the criminal act. The criminal code does not call for the prosecution of all convenient crimes or defendants.
“Politicians merely have to get out of the way and allow a special prosecutor to take this investigation wherever it would lead. Having said this, it would be difficult to hold lawyers like John Yoo, who merely gave legal advice, responsible – no matter how baffling and unsupported it proved to be. Likewise, on the unlawful surveillance program, Democratic and Republican members who knew of the unlawful program would not be subject to prosecution.
“Bush, Cheney, and high-ranking officials would be obvious targets for prosecution under either program. However, I have resisted these questions from members because it misses the point: if there was a crime, we should not be concerned about where an investigation might lead. It will lead where criminal conduct is found. We do not ask that threshold questions for bankrobbers or purse snatchers. We leave the outcome to the criminal justice system.”
Why have your assertions not gained more currency in the public debate?
“The mainstream media has bought into the concept that this is merely a political not a legal question. Indeed, media often leave the clearly misleading impression that there is an equal academic debate over whether waterboarding is torture or whether warrantless surveillance is legal. To this day, media refers to waterboarding as an ‘interrogation technique’ when courts have consistently defined it as torture.”
How specifically should this accounting be done — by the next administration, by Congress, by an independent commission, the UN?
“All civil libertarians are asking is for politicians to simply get out of the way. Democratic leadership has blocked any serious investigation in the torture crimes. It will remain a lasting stain upon that institution that it refused to act in the face of clear war crimes.
“However, all that is needed now is for members of Congress to stop obstructing this process and allow a special counsel or prosecutor to investigate these crimes.”
What about the next administration?
“Eric Holder should be asked the same question that Mukasey refused to answer in his confirmation hearing: is waterboarding a crime? If he refuses to answer or denies that it is a crime, he should not be confirmed. If he admits that it is a crime, he should order a criminal investigation.
““This is precisely why Mukasey refused to answer the question (after first stating implausibly that he did not know what waterboarding is). The appearance around the world of not only a presumptive war crime but our continued debate over whether to investigate is destroying any credibility left after eight years of controversy. The rule of law demands that crimes be investigated equally for crimes equally whether they are committed by the lowest and the highest in our society.”
Why do you think this is necessary? Why not just turn the page?
“Every criminal defendant that I have represented wanted to ‘just turn the page.’ In my view, the response of our country to these crimes is as bad as the crimes themselves. A country should not be judged by those who break its laws. However, it is legitimately judged by how we treat those who break our laws.
“If there is no investigation or prosecution for these crimes, we will confirm what our enemies are claiming: that we are hypocrites who demand accountability from everyone but ourselves. If Obama’s administration circumvents a prosecution, it will adopt the very same legal relativisim that ultimately destroyed the credibility and authority of the Bush Administration an international pariah. The ‘page’ referenced in your question is the page that contains our commitment to the rule of law and blind justice. If we turn that page, we turn our backs on the very thing that defines us and distinguished us from our enemies.”
What efforts are underway to make this inquiry happen? What are the chances it will happen, and if you think they are low, why is that?
“The Democrats are clearly still testing the water for an alternative to prosecution to see if they can get away with another commission. Leaders do not see any personal or political benefits from a prosecution. It will come down to the voters. The commission proposal shows utter contempt for the intelligence of voters.
“We have been a nation of chumps – electing officials who run on civil liberties and legal process who have silently blocked any investigations into these crimes. I am still hoping that the public will finally have enough and demand that these politicians get out of the way and allow the criminal process system to work. The key may be the Holder confirmation. If he evades this simple and direct question (as did Mukasey), he should not be confirmed.”
What reaction are you getting to your proposal, inside and outside GW?
“I have heard from people around the country asking for ways that they can be heard. There is an obvious sense of frustration and betrayal with Democratic leaders. The criminal investigation is a litmus test of principle for the Obama administration.
“If President Obama cannot stand with the rule of law on the issue of war crimes, he is continuing the approach of politics without principle that have made the current president and current Congress the least popular in modern history. It will take considerable pressure, however.
“This week, Democratic leaders again voiced interest in a commission to determine whether to investigate for war crimes. Since when do we need commissions to investigate whether to investigate crimes? The crime here is well defined and openly committed. A commission would only work to delay any action in the hopes that voters will eventually lose interest and dismiss the issue as ‘ancient history.’ The last thing we need is another commission like the 9-11 Commission. Congress has already passed laws making torture a crime. It is now up to prosecutors to enforce those laws.”