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Wednesday, February 18, 2009

USA TODAY: Don't Investigate Bush Administration “Excesses” (read: alleged monstrous crimes)

USA Today’s editors revealed Tuesday that they oppose efforts by Democrats such as Rep. John Conyers (D-Mich.) and Sen. Patrick Leahy (D-Vt.) to form commissions to investigate the many “excesses” of the Bush team.  We’re reminded that such decisions are ultimately political, not legal.  Let’s look at the hodgepodge of points USA Today’s editors made, as these points represent conventional political wisdom. (Unfortunately, Rep. Conyers’ own argument seemed fairly weak and somewhat apologetic.)

USA Today latched onto Democrats’ calling Bush Administration misdeeds “excesses.”  That’s a pretty tame term for what, if proven, would amount to major crimes: torture; searches conducted without warrants or probable cause; aggressive war.  I was struck by the USA Today's reflexive sense that the investigation would ultimately be partisan.  It’s partisan to investigate war crimes? Democrats should not be painted as partisan for pursuing investigations.  Instead, Republicans should be faulted as partisan for not joining these efforts.

If I am ever accused of a crime, I will request a “commission” to look at my “excesses,” rather than a jury.

USA Today said investigating the alleged abominations would pose “a divisive distraction” from “rescuing the economy, controlling [the US's] exploding debt; fighting two wars and fixing other pressing problems.” Echoing President Obama, the editors said we should look forward, not backward.  I’m reminded of the workaholic who toils long and late to avoid introspection.

If I am ever accused of a crime, I will cite the crises of the day, and our need to look forward, not backward at my excesses ….

Where’s the principle here - would balmier times change the editors’ minds?  Moreover, these far-flung problems may be linked. Had the Bush Administration followed the rule of law and not wasted time and brainpower, for example, building an entirely new justice system designed to deny rights to a small number of people at Guantanamo, our leaders might have been able to think more clearly about other issues. Had the Bush Administration (and our major newspapers such as the Washington Post and New York Times, and our citizenry, for that matter) weighed the putative evidence of Iraq’s supposed WMD more carefully and followed international law, we would not be paying billions of dollars for all that unnecessary killing. 

The USA Today editors wrote, “Then there is the question of motive. Unlike Richard Nixon, whose subversion of the Constitution was meant to perpetuate his power, Bush’s post-9/11 decisions were simply his best judgment about how to keep the nation safe.” That’s reassuring, but it begs the question: Can we know motive without even a “justice lite” investigation by a commission that will ultimately end with a big group hug?  Also, the illegal methods - torture, widespread eavesdropping - are not really effective for information-gathering.  Invading Iraq did not make us safer. These post-9/11 decisions - especially endless war - unleashed methods commonly applied by governments that aim to increase their own power and crush dissent. At the USA Today, the government’s (proclaimed) ends justify the means. 

If I am ever accused of a crime, I will say I simply had good intentions.

The editors also reassured us that, “The fact is the Bush administration’s excesses are already well-documented, thanks largely to journalists, historians and Democrats who took charge of congressional oversight after 2006.”  I don’t remember lots of meaningful Democratic oversight after 2006.  I do remember continued funding for the Iraq occupation and immunity for telecoms involved in warrantless “excesses.”

If I am ever accused of a crime, I will point out that everybody already knows everything I did, and that the government now trying to bring me to justice was in power at the time of my excesses - so what’s the point?

The USA Today concluded, “Congress’s attention is better devoted to solving problems than to exacting retribution.”

If I am ever accused of a crime, I will say that government’s purpose is not to exact retribution, but to solve problems.

Maybe a deeper message lurks: If our political leaders hadn’t spent their time and our money seeking retribution for 9/11 by engaging in divisive distractions such as invading and occupying Iraq and torturing people at Guantanamo and beyond - acts that killed and maimed and harmed thousands of innocent people - maybe we wouldn’t have so many crises in the U.S.A. today.

The USA Today’s political arguments are unconvincing. The editors' tentative support for only a limited investigation into “one or two key unresolved questions, such as whether torture actually produced information that saved lives,” seems small-minded and backside-covering in the shadow of the monumental crimes alleged.  The crimes alleged are reprehensible, monstrous, among the worst crimes human beings can commit.  We owe ourselves and the world - especially our victims - a full airing, and punishment of the perpetrators.  Let’s rise above partisanship and investigate.

Posted by Brian J. Foley on February 18, 2009 at 06:58 PM in Criminal Law, Culture, Current Affairs, Law and Politics | Permalink


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There is no view that can transform a wrong into a right not unless you are looking through corrupt glasses in this case. All people know what it is like to feel pain, and we all know that you cannot spin a lie into the truth. So by saying you don't take a side makes you sound
like "you have taken a side" in support of the US occuping Iraq, and calling it war. Most Americans do not feel that this war/occupation was ethical or necessary.

Posted by: Lady Rossenburg | Mar 5, 2009 10:39:27 PM

We know the truth "the Bush administration broke the law" and we need JUSTICE and PROSECUTIONS, because only then will the victims, their families, and the American People have closure.

Posted by: Lady Rossenburg | Mar 5, 2009 10:21:49 PM

I'm not arguing one way or another. My point is that you were very flippant in your characterization of the war as 'unecessary'. It certainly is much easier to live in a world of absolutes, but it doesn't always work. Sometimes you might have to allow for the possibility that there are reasonable ways to view different sides of an issue. If you start out with the idea the war is 'unecessary' as your baseline, without exploring that characterization, then it will color the entire rest of your discussion.

Posted by: D | Feb 21, 2009 1:15:51 PM

PG: Prosecutorial ethics requires that prosecutors not bring a case where the evidence goes against the charge. This includes evidence of affirmative defenses, like self-defense and necessity. Your original comment suggested that the decision to charge should not take these into account. To the extent you're now talking about the decision to investigate, I think we are in agreement.

Posted by: JP | Feb 20, 2009 1:47:48 PM

JP: Thank you.

D: You seem to be arguing that the war was a humanitarian intervention. Much has been written on that. You would also have to ask those killed, maimed, injured, displaced, and grieving since 2003.

Aaron: Re-read my initial post - which also might help you see that whoever you are quoting at the end of your post is not me.

Posted by: Brian J. Foley | Feb 20, 2009 1:15:27 PM


Prosecutorial ethics requires that prosecutors not bring a case where the evidence goes against the charge. That's probably what the concept of "comfortable" was about -- the prosecutor should not prosecute where he doesn't actually believe that there's evidence for it, because that would be a frivolous prosecution. You have to investigate the evidence before you can make such a decision. I'm certainly opposed to prosecuting folks in the Bush Admin regardless of evidence; however, Brian is criticizing those who say folks in the Bush Admin should NOT be prosecuted regardless of evidence. In other words, even if there's evidence of a policy that permitted sodomizing detainees with objects, and such a policy violated U.S. law and treaties, the Bush Admin should be free of any prosecution because these were "political" decisions and thus not within the reach of law.

Posted by: PG | Feb 20, 2009 1:00:50 PM

"I doubt you would have opposed prosecuting the Nazis after World War II because the decision to invade Poland, etc. was a political decision."

I personally wouldn't have opposed prosecuting the Nazis for invading Poland, but not because I thought there was some statutory transgression. Rather, I would have simply wanted some tribunal to formally show them that I morally condemned their actions. I think this illustrates the discourse in this thread -- whether someone "should be prosecuted" (a preference) is a different determination of whether a certain act is criminal (a legal determination). I think you've conflated these two concepts.

Hence your unwarranted assumption: "well, if we had an investigation that showed that there was no reasonable self-defense, and that the Bush Administration knew this, and the Congressional ratification didn't absolve them of their deeds, and we were part of the ICC, then they'd all be criminals."

If we had some ham, we could have ham and eggs if we had some eggs.

Posted by: Aaron Williams | Feb 20, 2009 12:40:44 PM


You casually describe the war as 'unecessary'. I wonder if the people imprisoned and executed by Saddam Hussein, or the Kurds might disagree with your casual description.
Also, it seems to me that the Constitution apportions the responsibility for warfare among the various branches--the executive leads the military, only the legislative branch can declare war, etc. Do we really want the judiciary in charge of determining, after the fact, whether a war is 'unecessary'?

Posted by: D | Feb 20, 2009 12:17:55 PM


The Nazis were prosecuted because they lost. There were no prosecutions for Allied war crimes (e.g., Dresden, Nagasaki, pretty much everything the USSR did). I don't see how the type of prosecutions you envision are even plausible absent some utopian world government and as Orin notes, most Americans at least think the ICC and UN are a long way off.

There apparently exists a World Tribunal on Iraq, modeled after the Russell Tribunal. Prior to this morning, I had never heard of either. I think a domestic, 9/11 Commission-style investigation is a good idea, and could lead to real limits on the Executive, clear statements of U.S. policy, intelligence agency reform, and possibly even prosecutions. But if the choices are the criminalization of most modern U.S. foreign policy, a kangaroo court no one takes seriously, or nothing, I'll pick nothing.


I was challenging what I read as your assertion that a prosecutor shouldn't consider possible defenses in the charging decision. My "original claim" was the obvious counter-example. I didn't mean to suggest that "pretty likely" was a legal standard. (Though at the same time I don't see the distinction between a "pretty likely level of evidence" and a level of evidence that makes the prosecutor "comfortable.")

Posted by: JP | Feb 20, 2009 11:41:51 AM


To clarify, your original claim was that she wouldn't be charged "if it seems pretty likely she was acting in self-defense." Your example doesn't support a "pretty likely" level of evidence being sufficient to make that determination.

Posted by: PG | Feb 20, 2009 10:38:32 AM


From the link you provided: "Although Fouracre said he's made a justifiable homicide finding only one other time in his 20 years as a prosecutor, he emphasized that 'Based upon all the evidence we have, I'm very comfortable with the decision.'"

It took him almost a year to come to the decision, and he made a thorough investigation and reviewed a lot of evidence. If prosecutors chose not to charge anyone in the Bush Admin based on a thorough investigation and review of evidence, I'd be fine with that. It's the idea that there shouldn't even be such an investigation and review of evidence that is bizarre and doesn't comport with how we normally deal with potential crimes.

Posted by: PG | Feb 20, 2009 10:37:08 AM

So waging a war that is unnecessary is not a crime? The allies after WW II were able to put together the Nuremberg trials and charter:


Also, check out the UN Charter:


Or we could just call it a form of homicide.

Orin, et al, yes, there is a political dimension to all decisions to go to war. That does not make the act immune from investigation and prosecution if it turns out the war was not waged in self-defense (see UN Charter Art. 51) or with UN approval or turned out to be an aggressive war. I wonder if you are mixing up the Supreme Court's avoidance doctrine of "political questions" with the idea of prosecution for crime? Surely many crimes by governments or government actors are political, or have homegrown political support. I doubt you would have opposed prosecuting the Nazis after World War II because the decision to invade Poland, etc. was a political decision.

If Americans lack the political will to clear up for themselves whether crimes occurred, and, if so, to prosecute offenders, I hope there will be an international commission (since we are not members of the ICC) at least to investigate, even something akin to the commission Bertrand Russell and Jean-Paul Sartre put together to examine US war crimes in Vietnam.

Posted by: Brian J. Foley | Feb 20, 2009 10:28:12 AM


My understanding is that we didn't join the International Criminal Court because most Americans are highly suspicious of efforts to try to turn every unpopular foreign policy decision into a "crime," especially given that the ICC has little democratic accountability. You seem to disagree with that decision, and I assume you think that we need not be suspicious of those efforts. But my sense is that given the wide range of public opinion (and wide range of opinion among blog readers, here and elsewhere) that is an argument that needs to be made, not assumed.

Posted by: Orin Kerr | Feb 20, 2009 1:26:55 AM

Also, if we prosecuted U.S. Presidents for engaging in aggressive war, who is the most recent president that would not have been prosecuted? Carter? (Or would funding and instigating a proxy war in Afghanistan be a war crime?)

Posted by: JP | Feb 19, 2009 6:36:30 PM

PG asks: Example?

From about 10 seconds of Googling, here is one from last month: http://cbs4denver.com/local/Jim.Tatum.trinidad.2.911142.html. This is pretty uncontroversial.


As I recall, the decision to invade Iraq had substantial popular support, as well as bipartisan support in Congress. I'm inclined to support some kind of investigation/commission/prosecutions, but where would you begin investigating someone for "aggressive war?" (Also, how do you negligently engage in aggressive war?)

Posted by: JP | Feb 19, 2009 6:26:48 PM

"Invading Iraq under fraudulent at worst and negligent at best circumstances was certainly among the worst crimes a human can commit."

Surely reasonable people can disagree as to whether the Iraq invasion was a good idea. But a "crime"? By the President of the United States? Acting as Commander-in-Chief? Invading a belligerent with full Congressional authority and ratification? Forget self-defense and other affirmative defenses. Under what statutory authority could he be charged in the first place?

Posted by: Aaron Williams | Feb 19, 2009 5:38:10 PM

This is precisely why we have the International Criminal Court (too bad the US is not a member). Many people won't prosecute their own political leaders even if these leaders commit war crimes - especially, unfortunately, members of Team USA.

Posted by: Brian J. Foley | Feb 19, 2009 5:33:20 PM

Also, agreed with Prof. Kerr that the decision to go to war is a political and not legal one. However, the methods used to prosecute a war, the treatment of POWs -- er, I mean, "detainees" -- and other aspects of the war once it has begun are subject to both domestic and international law.

Posted by: PG | Feb 19, 2009 5:32:26 PM


Posted by: PG | Feb 19, 2009 5:30:19 PM

Brian writes: "Invading Iraq under fraudulent at worst and negligent at best circumstances was certainly among the worst crimes a human can commit. . . . There needs to be investigation and, if the investigation turns up evidence of criminal behavior, prosecutions."

I think the difficulty is that most people see a President's decision to go to war (or to lobby for one) as a political decision, not a legal one: We try to elect Presidents who will exercise that power with wisdom, but we recognize that it's often a very hard call and that we don't ordinarily criminally prosecute the Presidents who in retrospect we think got it wrong. The reasons for the war have been the subject of many best-selling books, and political judgments have been made about the wisdom of that decision. The system has ordinarily worked by imposing a political judgment on those decisions, not a legal one, and I think most people think that's the better way.

Posted by: Orin Kerr | Feb 19, 2009 5:22:41 PM

Orin and D,

Bush "excesses" include, as I mentioned in my post, aggressive war. Invading Iraq under fraudulent at worst and negligent at best circumstances was certainly among the worst crimes a human can commit. Lots of innocent people died needlessly; many innocents have suffered in many ways: maimed, injured, losing family and friends, becoming refugees. Not to mention property destruction, likely environmental damage, etc.

So is torture among the worst of crimes - and waterboarding was not the sole method used and is a red herring. Prisoners have died in US custody in Iraq and Afghanistan under suspicious circumstances.

There needs to be investigation and, if the investigation turns up evidence of criminal behavior, prosecutions.

Posted by: Brian J. Foley | Feb 19, 2009 4:56:17 PM


A DA won't charge a battered wife with murder, or even manslaughter, if it seems pretty likely she was acting in self-defense.rape?

Posted by: PG | Feb 19, 2009 3:57:08 PM

I'm in awe that you, without a hint of irony, can say 'Let's rise above partisanship' in a post so slanted and filled with hyperbole.
Is waterboarding terrorist suspects wrong? I think many would say it is. Is warrantless wiretapping wrong? Also, many would say it is.
Are they 'reprehensible, monstrous, among the worst crimes human beings can commit'? I doubt it. Unless I'm missing allegations here, I don't recall the Bush administration ordering the extermination of a group of people, authorizing rape as a means of warfare, killing children to send a message, wiping out entire villages as retribution for a perceived slight, etc.
If you're going to call on people to rise above partisanship, you should start by doing so yourself.

Posted by: D | Feb 19, 2009 1:08:09 PM

PG writes: But surely the decision on whether to charge the crime isn't supposed to take into account whether "he had it coming" (re: KSM's waterboarding) or "it was necessary" (re: wiretapping).

Of course it is. That's the basic function of prosecutorial discretion. A DA won't charge a battered wife with murder, or even manslaughter, if it seems pretty likely she was acting in self-defense.

Posted by: JP | Feb 19, 2009 1:01:11 PM

But surely the decision on whether to charge the crime isn't supposed to take into account whether "he had it coming" (re: KSM's waterboarding) or "it was necessary" (re: wiretapping). These affirmative defenses and excuses can be brought up at trial, and of course a jury that doesn't believe it was a crime at all will simply nullify by refusing to convict. The Obama Administration (and USA Today) are saying there shouldn't be the charging of a crime in the first place. Republicans are saying there shouldn't be any investigation of what occurred, even where testimony is immunized from domestic prosecution, lest the wicked Europeans haul unfortunate Bush Admin vacationers into international tribunals. (Poor Kissinger can't go to France, Argentina, Chile, Brazil...)

Posted by: PG | Feb 19, 2009 12:19:25 PM

You state at the end that "The crimes alleged are reprehensible, monstrous, among the worst crimes human beings can commit." I suspect the difficulty is that many people disagree with you on this, including, it seems, the USA Today editors and the Obama Administration. As best I can recall, the public opinion polls I have seen were pretty divided on warrantless wiretapping, and also pretty divided on whether techniques like waterboarding should be used against terrorist suspects. (I suspect part of the public opinion on waterboarding is based on the fact that as far as I know, only 3 people were waterboarded: Khalid Sheikh Mohammed, Abd Al-Rahim al-Nashiri, and Abu Zubaydah.)

That is, there is a political judgement going on about how bad the conduct was, and then a political judgment about how the system should respond in light of that. If you want to persuade more people that investigations are necessary, I think the trick is making the argument to support your view that the crimes alleged are "among the worst crimes human beings can commit" -- not in the sense of the abstract category of the conduct, but in the sense that the moral culpability of the conduct in light of the circumstances was among the worst possible. (To be clear, I'm not taking a position in this comment one way or another; I'm just suggesting that the issue seems to rest on the political judgment of just how culpable the conduct was, and that's where the argument should focus, I think.)

Posted by: Orin Kerr | Feb 19, 2009 11:46:37 AM

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