McCain is a Figurehead

McCain does not speak for the McCain campaign. There is a very good reason for this and it happens to be that McCain is not in charge of the McCain campaign. The campaign is run by people under the direction of a set of shadowy Republicans. These people are advancing their agenda independent of what McCain does. McCain can go around saying whatever he wants and it really does not matter because he does not speak for the campaign to elect him figurehead.

Think about it. There is a list of 70+ topics McCain has flipped on. In many of these cases he is at odds with what the campaign people have put out there. Take the recent tax flap for instance.

On Sunday, McCain said a payroll tax increase could be part of a negotiation. On Tuesday, McCain’s spokesperson said a payroll tax increase is “absolutely out of the question.”

The spokesperson got it from the campaign strategist and manager so he is the one who we should listen to. The campaign starts to make a great deal more sense when you assume that the people behind the scenes writing his policies and telling him where to go are the ones who will also be setting the agenda when McCain gets elected.

McCain is about the best choice there is to turn into a figurehead candidate. He really wants to be president and run our military. After being destroyed by Rove and Bush in SC during the 2000 campaign McCain was willing to simply do what it takes to be elected. He does not care about the domestic side of governing and this is his last possible shot as he is now in his 70’s. He waited his turn and submitted to the GOP so that now he gets his shot at being our military leader. All he had to do was let other people handle the domestic side of things. It makes perfect sense.

Listen to McCain when he talks about bombing brown people but not when he starts talking about taxes. He did not write it and he did not read it.

Read more...

Will the US Nation Build again after Iraq?

The US experience in Iraq has been a horrific one. 4119 dead US soldiers with over 30435 wounded. We have gained nothing and lost so much. The war and occupation of Iraq is in many ways the culmination of post-Cold War thought. While greatly emphasis for the justification of the conflict was placed on the threat of WMD we cannot overlook the humanitarian element that accompanied the WMD case. There was always that statement that followed after talk of WMDs, “Yeah and Saddam is a really bad guy. The world would be better off without him.” Still high on the apparently quick success of Afghanistan the US wanted to continue to rid the world of its perceived Evil and Saddam made an easy target. This humanitarian impulse has led to disaster after disaster in Iraq. The question will inevitably arise whether the American people will have the will or desire to participate in future nation building or peacekeeping missions after Iraq.

The current dark mood of the American people regarding our foreign entanglements seems almost like the precursor for a return to isolationism. It would not be that surprising to see the American people demand that we pull back from the current worldwide spread of our military to lick our wounds and rebuild our treasury. I doubt we will see a return to the isolationism of the 20’s and 30’s since the post war culture and economy make it hard for a country to retreat inside its borders. Our policy of world wide assertiveness has been so ingrained that it is hard to imagine the US functioning any other way but if there is an event that could trigger a pull back Iraq is it.

Senator Obama talks about how the war in Iraq has made us lose focus on the important, read justified, conflict in Afghanistan. I am not particularly confident that the public will to fight that conflict on the scale of Iraq but that might not be needed. The conflict in Afghanistan provides an opportunity if the US chooses to take it. Afghanistan provides the opportunity to return to the right track in the minds of Americans. The reason we entered Afghanistan is clear and well understood. Due to the incompetence or inattention of the Bush administration a symbol of that cause, Osama bin Laden is still at large. Obama with his leadership skills proposes to lead the country out of the darkness that is Iraq and back to a war that is still supported by the American people. It is a simple way of putting Iraq behind us.

When I speak of nation building and Peace Keeping, I have a definite idea about what that entails. My definition of nation building is: A military intercession into a state for the purpose of democratizing that state. I view Peace Keeping as a specific subfield of nation building. Peace Keeping is a more hands off form of nation building where the military force does not actively build the institutions of the host country but holds down violence so native groups may build those institutions. The nation building that the US has attempted in Iraq and Afghanistan is far more than that. In those two countries the US has designed the Institutions, imprinting itself on the country to a degree not found in strict Peace Keeping missions.

“is there no nation wise enough, brave enough, and strong enough to restore peace in this blood smitten land?” James Creelman- New York World, May 17th 1896

The US has a long history of attempting to nation build. It should probably be something we are more recognized for, as nation building is almost a hallmark of our national identity at this point. Beginning with the Spanish American War the United States embarked on more than a century of nation building activity. The American Empire is unique because it evolves around the idea of Democratizing the world instead of the acquisition of physical territory. We prefer an ideological empire. For instance, the United States was the first imperial power in history to freely relinquish a possession when we released the Philippines in 1946. The Philippines may be considered our first great success in nation building, the result of 50 years worth of effort.

It should not come as a surprise that because of early experiences in nation building the US army actually devised a field manual entitled FM 27-5, Military Government in 1940. The establishment of The School of Military Government at the University of Virginia in April 1942 quickly followed this manual. The Army later established the Civil Affairs Training Program to train junior officers in military government. As a result, a doctrine was established for what the military would do to set up government in occupied territories.

Their first order of business was to post proclamations and ordinances which announced the occupation and established rules for the civilian population. Next, they located the Buergermeister (mayor) in order to establish a link with the population. If the Buergermeister was a Nazi, the military government team would appoint someone else. Orders were issued to surrender all prohibited items, such as weapons, ammunition and communication devices. This was followed by a house to house search for these items. Curfews were established as well as movement and assembly restrictions. In order to enforce these restrictions, all adult citizens were registered. Other typical civil affair duties included arranging for burial of the dead, establishing a police force, and, if possible, reestablishing water, electricity and other local administrative activities.- Colonel Jayne A. Carson, United States Army -Nation Building the American Way pg 11

The United States experienced success when building states in the Philippines, Japan, and Germany. This was not the case in the sates that followed the cold war. Following the Cold War the United States was dealing with failed states more in the mold of the Philippines than Germany. However, the United States had forgotten the lessons of the Philippines where it took 50 years and many lives to build a state. Instead, the US became caught up in our role as the lone Super Power left. We committed to our first post cold war nation state building exercise in the state of Somalia in December of 1992.

The experience in Somalia was a total failure. The mission for US forces in Somalia evolved to include establishing political institutions and civil administration after starting with a simple goal of establishing safe food delivery conditions. The need for military intervention in the Somali civil war was deemed a necessary part of this mission. It was the militaries attempt to capture Aidid on October 3-4 1993 that ultimately led to the withdrawal of US forces. The failed raid is dramatically portrayed in the film Black Hawk Down. The result was 18 soldiers killed and 76 wounded, two Blackhawk helicopters shot down and their crews were killed or wounded, one pilot taken prisoner. We were in the Philippines for 50 years and stayed in Somalia for less than three.

The United States followed the failure in Somalia with a relative success in Haiti. We then committed to Bosnia and then to Kosovo. In each case, the commitments were made under the expressed idea that we would be there for a shot time only. In reality, these types of missions make no sense on such a short time frame. As President Clinton pointed out when the mission in Bosnia ran longer than he originally stated it would,

“Quite frankly, rebuilding the fabric of Bosnia’s economic and political life is taking longer than anticipated.”

Nation building in failed states takes time, it takes resources, and it takes blood. None of those things are going to be very available after our exit from Iraq. Though history shows that even when we are not particularly interested in committing the resources that the mission needs we do it anyway. That “army you have, rather than army you need” attitude is a recipe for disaster that may finally be understood after Iraq.

The United States has been building nations around the world since 1898. After Iraq, that behavior may diminish. There is also the question of not only whether we will continue to nation build but also whether we should. The US needs to make a fundamental decision about the value of humanitarian intervention and nation building. To properly build a nation takes decades of military presence and sacrifice and though the American people would love to bring Democracy to all the cost always seems to be too high. Given the unwillingness to commit what is required to build a fully functioning state I do not think the US should commit to such missions in the future.

Read more...

The Obamacentric Universe

Anyone paying attention to the 2007-08 campaign for President cannot but help to see that the since Iowa the race has been about Obama. The Primary became about him. Could he survive Jeremiah Wright? Could he earn the votes of Sen. Clinton’s base? The discussion about whether Sen. Clinton should stay in the race was driven by projections about her effect on Obama’s future chances. The compelling story that is Barack Obama became the star of the show. This race dynamic centered on Obama has only solidified since the General Election has started.

The dreadful performance of the McCain campaign has been well documented as has his inability to get a great deal of media coverage. Some speculate that the lack of coverage is actually good for McCain because it prevents people from understanding how confused he is about really important things. The argument assumes that more coverage would equate to more coverage of his mistakes. This is not necessarily true. What the McCain campaign has to be upset about is the lack of positive press in addition to his screw ups. His screw ups are virtually the only thing being covered because they are generally so bad that not covering them is unethical. The McCain camp is pissed because they cannot generate the positive images and coverage to offset the screw ups. Barack Obama has taken firm control of the race dynamic.

The Obama camp plan of attack is clear. They are taking advantage of the time before the convention to define Obama. It is hard for us who follow the political events rapidly to contemplate that some people really do not know who Obama is. The campaign is filling in his weakest areas and the areas people may perceive as weaknesses. They can define Obama how they choose to and there is not a whole lot the McCain camp can do about it because they are not in control. McCain has to react to Obama and as a consequence is always a step behind him. The McCain camp realizes that Obama is defining himself and they are trying their best to intervene. The wild and constant attacks that are entirely about Obama are their attempts at defining him before he firmly defines himself for the voters. Obama is the more unknown and he needed to define himself lest the right set up the lenses through which the voters view him.

While McCain spends all his time talking about Obama he leaves himself open. McCain should not rely on the old press and identity he built up. McCain should be out there trying to take more control of his identity reinforcing the maverick label with legislation or some coherent policy plans. Instead he spends all his time reacting to Obama and racking up policy inconstancies and gaffes.

Many kossacks are worried because they see McCain going undefined and continue as a maverick. The Obama team has chosen to sure up their own base and image before going to define McCain. This has a number of advantages. The first is that sets them up to attack McCain closer to the election when the Obama camp must feel that it will be more effective. People might forget what happened four months before the election but a steady stream of attacks just before the election might sway some minds. Defining McCain closer to the election also allows the Obama campaign to bring back Bush. Making himself seem safe early allows Obama to make the election a referendum on Bush. Voters can go into the booths and think, "Bush sucks. Therefore, Republicans suck. McCain is a Republican. McCain sucks" without worrying that the non-republican cannot do the job. Obama does not want to be defending himself at the wire.

I would look for a major paradigm shift around the time of the convention. By that point Obama should be as well defined as he is going to be. Both candidates will get their convention bounce and then Obama will go to work hammering on McCain until the election. The first half of the race will be about making sure Obama is up to the task. The second half will be about defining McCain to people, not as a maverick, but as the confused neo-con panderer. If McCain’s campaign continues to be this inept, I do not foresee them being able to stop Obama. They cannot stop him defining himself now and they will not stop him defining McCain later.

Read more...

The International Criminal Court, The United States, & George W. Bush

My last diary was on the possibility of George W. Bush pardoning himself for any crimes he may have committed against the United States during his tenure as President. There were many interesting comments made in that diary. The ones I was most intrigued by revolved around the potential international prosecution of George Bush in the International Criminal Court (ICC). These comments inspired me to look into the ICC, Rome Statutes and the possibility of President Bush being prosecuted in that court. I am going to focus on the theoretical possibility of this happening because I believe that even if it were possible that it would be highly improbable.

Background on the ICC-US relationship

The relationship between the US and the ICC is a complicated one. Traditionally the US has been one of the biggest supporters of international justice. America has played a major role in many of the most important international trials and tribunals during the 20th century. These trials include the ones at Nuremburg and Tokyo following WWII as well as ad hoc tribunals for Yugoslavia, Rwanda and Sierra Leone. When it comes to the ICC the US takes a completely different posture. The US has been one of the most aggressive opponents of the ICC taking numerous steps to shield both our citizens and others from the reach of the court. These steps include Bilateral Immunity Agreements (BIA), also known as “Article 98” agreements and the American Service Member Protection Act (http://www.state.gov/t/pm/rls/othr/misc/23425.htm) (ASPA).

The BIA’s are also reffered to as Article 98 agreements. So called after the clause in Article 98 bars the ICC from requesting the surrender of a person which, "would require the requested State to act inconsistently with its obligations under international agreements". These agreements negotiated between the US and other nations are meant to shield US citizens from the ICC. This is not always achieved. For Example, the Council of the European Union adopted a common position, permitting member states to enter into Article 98 agreements with the United States, but only concerning U.S. military personnel, U.S. diplomatic or consular officials, and persons extradited, sent to their territories by the United States with their permission. The agreement did not include the general protection of U.S. nationals that the United States sought. In addition, the common position provided that any person protected from ICC prosecution by such agreements would have to be prosecuted by the United States. Since this agreement was reached in 2002 a total of 100 countries have signed similar agreements with the US.

ASPA is a more aggressive step in protecting US citizens from the court. It contained a number of provisions, including prohibitions on the United States providing military aid to countries that ratified the treaty establishing the court. There were a number of exceptions to this, including NATO members, major non-NATO allies as well as countries which entered into an agreement with the United States not to hand over U.S. nationals to the court. It also included a provision authorizing the President to use military force to rescue any US national held by the court.

The United States signed the treaty in 2000 in order to continue influencing the development of the court for as long as possible before the court came into existence. President Bush unsigned the treaty in May of 2002 before the court came into existence 1 July 2002.

It is hard to gauge how opposed the United States has been to the ICC. The US played a major role in negotiating the treaty that establishes the court from its inception until the treaty was voted upon. The US would very much like to have the court but we would not like to be subject to it without our consent on a case by case basis. Those familiar with the US legal system will know that a person is allowed to sue the government only by the governments consent in a doctrine called Sovereign Immunity. This has been reformed somewhat in the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party. These acts though are not a general waiver and the government still holds a great deal of oversight.

During the negotiations over the treaty that would establish the court the United States made a significant impact. In testimony before congress (available here because it wont let me set up a link-www.iccnow.org/documents/1stSesPrepComSenatecfr.pdf) Ambassador David J. Sheffer, US Ambassador for War Crimes, highlighted the following as the successes the US achieved in negotiations:

•an improved regime of complementarities, meaning deferral to national jurisdictions, that provides significant protection, although not as much as we had sought;
•a role preserved for the U.N. Security Council, including the affirmation of the Security Council’s power to intervene to halt the Court’s work;
•sovereign protection of national security information that might be sought by the Court;
•broad recognition of national judicial procedures as a predicate for cooperation with the Court;
•coverage of internal conflicts, which comprise the vast majority of armed conflicts today;
•important due process protections for defendants and suspects;
•viable definitions of war crimes and crimes against humanity, including the incorporation in the statute of elements of offenses (We are not entirely satisfied with how the elements have been incorporated in the treaty, but at least they will be a required part of the Court’s work. We also were not willing to accept the wording proposed for war crimes covering the transfer of population into occupied territory);
•some progress on recognition of gender issues;
•acceptable provisions based on command responsibility and superior orders;
•rigorous qualifications for judges;
•acceptance of the basic principle of state party funding;
•an Assembly of States Parties to oversee the management of the Court;
•reasonable amendment procedures; and
•a sufficient number of ratifying states before the treaty can enter into force, namely 60 governments have to ratify the treaty.

Of the things above the US negotiated for, the extension of war crimes to include internal conflict due process guarantees for defendants, recognition of gender issues, and rigorous qualifications for judges should be considered very important and positive. The US also made sure that crimes against humanity would not require a link to aggressive war as had been the previous precedent. If the US had chosen to kill the court entirely it had multiple opportunities to do so which it passed up. Unfortunately, in the end the US feels it did not get enough control and veto power over the court to make it safe to join.

The United States was very set on getting Security Council control over the court. The original International Law Commission draft for the ICC placed the court firmly under the purview of the Security Council. The language explicitly stated that the court could not address anything being addressed by the Security Council without the Council’s permission. During the negotiations over the Rome Statutes, the countries not on the Security Council were upset by this and wanted to have a Court more independent of the Council.

The final language adopted in Rome allows the Security Council to intervene against an investigation with a resolution. The resolution needs a nine-vote majority and unanimous consent from the five permanent members. This option was not enough for the US. US concerns over the constructed language of jurisdiction were enough that unless we held a guarantee that we could intervene to protect US nationals we would not ratify the treaty. We did not get the assurance and did not ratify the treaty.

The State Department has an official list of problems with the treaty. There are two major concerns. The first is the Court’s jurisdiction over nationals whose countries are not party to the treaty. The jurisdiction of the Court extends where, “the accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court; The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court”. This would allow for the prosecution of US personnel on peacekeeping missions in countries that are party to the Rome Statutes. Consider if Afghanistan were party to the treaty. Many of the collateral casualties that have occurred could trigger prosecution.

Another concern expressed is over the topic of aggression. The court holds jurisdiction over the crime of aggressive war. However, the definition of what constitutes aggressive war has yet to be defined. The prevailing opinion of what US critics believe will constitute the crime of aggression is stated by Senator Helms author of the ASPA,

“The countries negotiating the treaty in Rome were unable to reach agreement on just what constitutes a crime of aggression. Well, I think I can anticipate what will constitute a crime of aggression in the eyes of this court. It will be a crime of aggression when the United States of America takes any military action to defend the national interest of the American people unless the United States first seeks and receives the permission of the United Nations. And I say baloney to that.”

Clearly, the invasion of Iraq would fall under this heading. So would several other US military excursions including the air strikes against targets in Pakistan taken earlier this year. The US would not like to be prosecuted for those actions.

The one that most fits with concerns over control is the powers given to the prosecutors of the ICC. The prosecutor may initiate investigations on their own discretion, proprio motu. The lack of control given the Security Council combined with the powers of the prosecutor gives rise to a fear of politically motivated prosecutions. This is a view espoused by Senator Rod Grams of Minnesota at the Congressional hearing on the Rome Statutes two days after their finalization where Sheffer gave his testimony,

“Under a system of complementarity, the ICC can override the decision of a nation’s judicial system and it can pursue a case if it decides that a State is unwilling or unable to do so. In other words, if an ICC prosecutor wanted to investigate and charge the President of the United States for a bombing raid like the one President Reagan conducted in Libya, our only way to prevent the case from going forward would be to have our own Justice Department investigate the President. If the U.S. Government then declined to prosecute, it would still be up to the judgment of the ICC whether to prosecute and pursue the case”.

The safeguard against a political prosecution is that the prosecution may only proceed if two ICC judges do not vote against it. This is not enough for US critics as they maintain that there is still a potential for the judges to be from non-democratic non-friendly states.

In addition to concerns over potential political prosecutions, there are also concerns over potential conflicts with the US Constitution. The Rome Statutes forbid any reservations and so countries wishing to become party to the treaty have to bring their national laws, including constitutions, into line with the requirements of the treaty. This has already happened in Ireland where a national referendum was held to determine whether Ireland would modify their constitution and be a part of the court or not. There is some resistance to the constitutional amendments that would be needed in the US to bring us in agreement with the Rome Statutes.

Certainly, the Rome Statute has no protection against unreasonable searches and seizures as enumerated in the fourth amendment. Furthermore, its guarantee of witness examination may be limited more than the U.S. constitutional right to confrontation would allow. The International Criminal Tribunal for Yugoslavia (ICTY) permitted the prosecution to withhold from the defense the identities of certain witnesses. The ICTY allowed use of written evidence that troubled a former U.S. federal judge serving on it. Perhaps the most important is the absence of a jury. The verdicts for the trials will be derived from three judge panels. In addition, the prosecutor as well as the defense may appeal the verdict. These appeals must be to the Court itself though and this is another factor that troubles US critics.

I am not a fan of these differences and prefer our standards in many of these cases. I also have grave doubts about the viability of amending our constitution to comply with the ICC standards. We have to eliminate several amendments. I am more concerned about the process differences and amending the constitution than about the possibility of political prosecution.

The ICC and George Bush: The Crimes

The first question to answer when talking about Bush and the ICC is whether he may be held liable for a crime under the Rome Statutes. The answer to this is an unequivocal yes.

Article Eight of the Rome Statute exhaustively defines war crimes subject to ICC enforcement, specifically crimes involving international and internal armed conflicts. Jurisdiction will only apply when the crimes are committed as part of a plan, or committed on such a large scale as to adversely impact international interests. The Geneva Conventions provide definitions for war Crimes. There are two incidents that easily qualify as war crimes. The torture that occurred at Abu Graib and Guantanamo.

Under the Rome Statute, the torture of prisoners in Iraq and Cuba would rightfully be deemed war crimes, as torture is clearly prohibited by Article 8(2)(ii). Guantanamo is the easiest case to make against Bush himself. With the release of several administration memos on the subject the nature of the torture was revealed to be systematic and thus would trigger the ICC action if the Court has jurisdiction. The ICC should definitely be triggered if it has jurisdiction, especially as the US has refused to initiate any action against those responsible for the torture.

Question of Jurisdiction

The odds of the US joining the ICC, even under an Obama administration, are not high. What other options are there? According to the Rome Statutes there are only four legitimate bases upon which ICC jurisdiction could be valid: universal jurisdiction over all core crimes, a state's ratification of the Rome Statutes, referral to the ICC by the United Nations Security Council or an existing customary norm allowing extension of jurisdiction from states to the ICC over non-signatories. Let us take them one at a time.

The first possibility for extending jurisdiction over US nationals is that the court somehow applies to everyone everywhere. This is not going to be accepted by the US. The only two crimes that are subject under this doctrine are slavery and piracy. Two have jurisdiction under this doctrine a common definition must be recognized by an overwhelming majority of states. This is not true for war crimes and the doctrine has not been used for the previous war crimes trials used as models for the ICC. This suggests that the ICC does not have, or claim, universal jurisdiction. Its own statement of limited jurisdiction also supports this to nationality of parties or rimes committed on the territory of parties. Precedent is not in favor of universal jurisdiction for the ICC.

Extending the reach of treaties over non-signatories is not a popular idea in international treaty law. The Vienna Convention on the Law of Treaties ("VCLT") states, "every treaty in force is binding upon the parties to it and must be performed by them in good faith" and “A treaty does not create either obligations or rights for a third State without its consent". David Scheffer agrees with the idea that non-signatories are not held to the treaties of others saying,

"I can tell you that it would be [a] bizarre, utterly bizarre consequence for governments to think that this treaty can be adopted and brought into force with the presumption that it will cover governments that have not joined the treaty regime. . . . That is unheard of in treaty law."

Scheffer is not completely correct as international treaty law apparently does allow non-signatories to be bound under an international custom.

The level of precedent and agreement required to set an international custom sets the bar very high when trying to extend the ICC over the US. The establishment of an international custom requires an overwhelming majority of states to accede to that custom. It would also require that the US have shown no resistance to the custom. The two governing cases where non-signatories were not held to treaties each featured the non-signatory clearly stating that they were not held to the treaty and a prolonged silence that proceeded the signatories complaint. It suggests that unless signatories take aggressive action to enforce the treaty at the earliest possibility the non-signatories will be exempted. The US has been adamant about not being bound by the treaty and the international community has so far failed to act in regards to the torture at Gitmo or Abu Graihb suggesting they agree.

The situation in the Sudan with the indictment of President Omar Al Bashir is different than the potential situation with George W. Bush. It is true that Sudan, like the US, is not a signatory to the Rome Statutes. However, in 2005, the UN Security Council passed Resolution 1593 11-0 referring the situation in Sudan to an ICC prosecutor. This is the expressed way to bring non-signatories under the jurisdiction of the ICC. If a similar resolution were passed regarding the US then George W. Bush might become subject to the ICC. That such a resolution would pass is not at all likely. It is interesting to note that the US could probably get the two additional votes to block any referrals it strenuously objected to.

Conclusion

Bush is not going to be tried by the ICC. We have agreements with enough countries party to the treaty that he can travel where he wants even if indicted. The only way Bush comes to justice is through our own system. Getting him in front of the ICC is too complicated because of the jurisdictional problems. Unless we allow a Security Council referral for him it is just not going to happen.

Read more...

How Likely is it that Bush Pardons Himself?

As the Bush Presidency mercifully draws closer to its end, the question of Pardons has started to appear. Given the criminal nature of the administration, many feel like the mass pardons are coming. I find it hard to disagree with this sentiment. Like every other aspect of power under President Bush’s purview, this too will be abused. The question becomes in what way? The power of the pardon is a sweeping one derived from the powers of the English monarch and so it has many possibilities. It is hard to imagine that Bush, who already believes himself a King, will forgo this temptation to insulate him and his henchmen from any criminal repercussions.

When I first read about the idea of Bush pardoning himself I thought, “How is that even legal?” As it turns out the question has never been resolved, as the situation has never occurred. Like many things under Bush, the President protecting himself against future prosecution would be a first. The only apparent limits on the power of the pardon are, cases of impeachment and money paid into the Treasury or paid an informer. The consent of the pardoned is not required for the pardon to be issued.

Originally, the pardon did require an acceptance by the pardoned. In United States v. Wilson, 32 U.S. (7 Pet.) 150, 160-61 (1833) Chief Justice Marshall wrote, “It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court.... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.” His acceptance doctrine has not stood the test of time.

In Biddle v. Perovich, 274 U.S. 480, 486 (1927), the court allowed the commutation of a death sentence against the wishes of a prisoner. The court reasoned that, “A pardon in our days, is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” This seems to very neatly take the power to refuse out of the hands of the pardoned.

The pardon is an interesting power because it is so broad. It is hard to imagine that the people who fought so desperately against the over broad powers of the king would be willing to grant powers of similar scope to the new American executive. Yet, that is exactly what happened. Now this power has fallen into the hands of President George W. Bush who will no doubt use it wisely. Note that his definition of wise may very from yours.

As I stated earlier the question of whether a President may pardon himself has yet to be resolved. The question briefly arose when President Clinton was leaving office with the specter of impeachment looming over his head. The Constitution simply says that the president "shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." In Clinton’s case, it appeared that he could have immunized himself from criminal prosecution from perjury but not from the impeachment itself. In a way, this makes limited sense. I doubt that the framers wanted to allow the president to circumvent impeachment all together simply by pardoning himself. Why they would allow him to avoid criminal prosecution is up in the air.

At the very least Bush could try to pardon himself. His legal henchmen are probably chomping at the bit to prove that the executive can really do what ever he wants. Although Bush pardoning himself might poke a minor theoretical whole in the argument that if the president does it, it is by definition legal. Why do you need immunity when you did nothing wrong?

In the event that he does try, things could get very crazy. If Bush is brought up on federal charges after her pardoned himself it would be up to the judge in that case to decide whether the pardon is valid. The judge might rule that the judiciary is not permitted to interpret the meaning of the Constitution in this matter. The rationale behind this is that the Supreme Court has ruled that certain constitutional interpretations are the province of "political" branches, not the judicial branch source. I find it unlikely that the court would pass on the chance to decide this constitutional matter. The outcome though is in doubt depending on the composition of the court after the next president is sworn into office. Can you imagine the court with his own appointments sending him to federal prison?

The fact that the charges against Bush and his underlings have not been filed is of no consequence.

While pre-emptive pardons remain very rare, there are a few notable exceptions. Perhaps the most famous presidential pardon of all time occurred before any charges were filed. Gerald Ford's pardon of Richard Nixon absolved the former president of "all offenses against the United States which he ... has committed or may have committed or taken part in" between the date of his inauguration in 1969 and his resignation in August 1974. In other cases, presidents have pardoned individuals after criminal proceedings have begun but before a judgment has been handed down. In late 1992, less than a month before leaving office, President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger, who had been indicted earlier that year on perjury charges surrounding the Iran-Contra affair. (A lawyer for Roger Clemens' former trainer Brian McNamee claimed the pitcher might receive a similar pardon from Bush if he were ever indicted.) In addition, broad presidential amnesties—like the one President Carter issued to those who had avoided the draft during the Vietnam War—are essentially pre-emptive pardons issued to a large group of individuals. source

The President may pardon anyone after the crime is committed. The exact offense is not needed as broad language is typically used such as the language Ford used for Nixon, "all offenses against the United States which he ... has committed or may have committed or taken part in”. This allows Bush to stay vague about the crimes committed so we would not even get the relief of knowing exactly what they are. It also makes sure he does not forget any.

Do not think that Bush will be unable to exempt everyone in his administration if he so chose. There are also several examples of broad amnesty grants. These examples include Washington in 1795, Adams in 1800, Madison in 1815, Lincoln in 1863, Johnson in 1865, 1867, and 1868, T. Roosevelt in 1902. The Supreme Court validated this practice in United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872) and United States v. Padelford, 76 U.S. (9 Wall.) 531 (1870)source.

It was brought up in another diary that those who are pardoned can be compelled to testify in court as the 5th amendment is no longer applicable. This is an interesting argument as it is true that there would be no threat of self-incrimination as the pardon removed all potential threats stemming from the crime. If the mass pardons are done correctly though there should be no one to put on trial. Ignoring that, it would seem that the pardon does force the person receiving it to testify. The case law concerning this is Boyd v. United States 142 U.S. 450 (1892). In Boyd the Court held that the disability to testify being a consequence, according to principles of the common law, of the judgment of conviction, the pardon obliterated that effect.

The inability to assert the 5th amendment was later reinforced in Brown v. Walker, 161 U.S. 591 (1896). In Brown, the Court said: “It is almost a necessary corollary of the above propositions that, if the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to such offence as if it had never been committed.”
Therefore, if Bush did pardon himself and every one around him and his self-pardon failed he would be in a great deal of trouble, especially as a person may not refuse a pardon. In that nightmare/glorious (depends on your point of view) scenario every one he pardoned could be compelled to testify against him and that is not something he would want.

There is not a great deal that congress can do to prevent or alter the effects of the pardon. Congress tried on July 12, 1870, to make proof of loyalty necessary to recover property abandoned and sold by the Government during the Civil War. This was struck down in United States v. Klein, supra. Chief Justice Chase for the majority: “[T]he legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The Court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority and directs the Court to be instrumental to that end.” This means congress will not be passing any laws to punish Bush if his self-pardon holds up.

It looks like it comes down to some simple risk-reward calculations for Bush. If he feels like there is no chance he ever faces federal charges he might as well save his pardons for people donating to his library. If he does feel like there might be charges in his future he might just pardon himself. The last possibility is that he just tries to immunize any one connected to him for the last eight years including himself in the belief that nobody would succeed in discrediting his self pardon. It is hard to imagine him passing it up but i think he does. After all no one else seems to be facing any federal charges over anything so why would Bush worry about any of them in his future?

Read more...