I like to follow legal commentary, and one of my favorite places to look is on FindLaw.com, which includes a weekly posting by lawyers, commentators, and law professors. Among those I am following are John W. Dean and Michael C. Dorf. John Dean was former Counsel to the President in the Nixon White House, and whose revelations of wrongdoing there eventually led to President Nixon's eventual resignation from office. Professor Dorf teaches at Cornell University School of Law.
Recently, Mr. Dean and Professor Dorf have posted articles touching on the question of whether Bush Administration officials who counseled and authorized torture of detainees should be held criminally accountable for their conduct. In an article published on Findlaw.com on June 19, Mr. Dean comes out on the side of prosecution, while Prof. Dorf at one time suggested that presidential pardons were appropriate. I confess to not having saved a copy of Prof. Dorf's article, and I apologize if I mischaracterize his argument in any way.
Nevertheless, as both Mr. Dean and Prof. Dorf have each gone public on this issue, I feel perfectly comfortable in responding to both, and I come down firmly on the side of Mr. Dean, and perhaps more emphatically than the tone of his June 19th article might otherwise convey.
Mr. Dean, in suggesting that prosecution might be the better way to go, cited as his authority the writings of Professor Samuel P. Huntington; and this past week, he spoke at the Nixon Library on what would have been the 37th anniversary of the Watergate Break-in. I have not seen a summary of his remarks, but I suspect they would have a great deal to do with the mindset of the former Bush Administration, and how much they had in common with the Nixon White House.
As it happened, I was in Washington in the summer of 1973, having recently graduated from an LLM program at Washington University's School of Law; and I was then job hunting on Capitol Hill and with various federal agencies. Having heard that Mr. Dean was scheduled to testify before the Senate Select Committee investigating the Watergate scandal, I was in seated in the audience on the morning that he testified, and I was forever impressed with the performance he gave that day. He, alone among all the others involved, understood the enormity of what occurred. In the years since, cohorts such as John Ehrlichman, Jeb Magruder, and several others have retreated into either religion or social service, and while they may have concentrated on such things as prison ministries or worked with poor Native Americans as ways to expiate their personal guilt, Dean alone went into the public forum to denounce the mindset and methods that allowed Watergate, and concomitantly the abuses of the Bush Administration, to flourish. Though behind his measured and lawyerly demeanor he may exhibit the fervor of a convert, on the merits Dean is right on the money.
Ten years before I first heard of John W. Dean, I was living in Hanau, in what was then West Germany. I had come over in August 1963 on a student work visa, and I extended my stay through the following spring. During that period of time, as I recall, 17 former guards at the Auschwitz Concentration Camp were brought to trial in Frankfurt on roughly analogous charges to those for which the Bush Administration now stands accused. I do not recall that any of the defendants were specifically accused of individual acts of cruelty or murder, but testimony heard that their trial was both sobering and disheartening; and there was also a public awareness, too, in a very public display of photographs and memorabilia to remind people, who neither wanted nor needed any such reminding of what occurred 20 years before. And these were people who bore their own scars of war, many of whom were ethnic Germans who had been born elsewhere in Eastern Europe and who were deported back to Germany under brutal conditions following the end of the war; vacant lots abounded where whole blocks of city buildings used to stand. Life was about long working hours, low wages, and the high expense of everything. Many of my fellow workers at the Dunlop Rubber Company bore the scars of war, missing hands, missing limbs, disfigurement, and psychic scars we could not see. Traffic on streets and highways was frequently crowded out by American soldiers, armored vehicles, and their equipment as they practiced against an anticipated war against the Soviet Union; they were an occupied country in every sense but name, and many people found the presence of an American army irksome, despite the fact that local authorities had titular jurisdiction over American military personnel who committed crimes against civilians.
The Germans are a conservative people whose public and private behavior is conditioned to respect and obey constituted authority. At the time I was there it appeared that as a people they were less questioning of their leaders than they might be now with sixty years of reconstituted and sucessful democracy behind them; but at that time, fear was in the air, not only of the Soviets, but of life itself. The last thing people wanted to hear about again was how their leaders and their soldiers had abused others. And yet they did so, and they absorbed the lesson, whereas we have not, and from the looks of it, might not be doing anytime soon.
As I was not then in the military, I also met, and hung out with, German students, none of whom had any memories of the Hitler era; they too argued passionately about democracy and the need to oppose tyrants and dictators. As I recall, most had only vague knowledge regarding specific historical events, as their parents and others were not eager to share their recollections of events that they knew about, and oftentimes had been complicit in. They, and each of them, had experienced family loss, whether in combat on a faraway battlefield, or by simply being unlucky enough to have been caught up in an urban firestorm touched off during one of the bombing raids they experienced nightly. I do not recall anyone there having suggested that because they as a people had taken such a beating, war criminals among them were somehow excused from being held accountable. Undoubtedly, there were many been living freely in Germany who were culpable, but that was largely a consequence of the Cold War, where the vast bulk war crimes had been committed in what was then in the Soviet zone of occupation. Also, after a few show trials and public executions of certain conspicuous offenders, their less prominent colleagues found ready employment in the new Soviet-dominated Eastern European security apparatus, and who could be counted on to deny witnesses and evidence that could easily be used against themselves. Despite this, German prosecutors continued to indict and prosecute suspected war criminals as they were found and evidence could be mounted against them.
Now we have former Bush Administration apparatchiks disingenuously arguing that because we all knew about what they were up to, even as they clamped a lid on disclosing documents and other evidence of their wrongdoing, that it is somehow unfair that they be prosecuted for the most serious and concerted violation of international law, and by extension the federal criminal code, in our nation’s recent history. The idea that we should now move on, while we are still up to our neck in the detritus of the previous administration's wrongdoing, is ludicrous. Likewise, the idea that former Justice Department officials can walk away from what amounts to criminal dereliction of duty on the premise that all they did was give bad legal advice is sheer sophistry. As to the punishment they deserve, revoking their bar license should be the least of their troubles.
As a didactic exercise let us assume, however, that there may be some merit to the idea that some form of clemency might be appropriate for those who may be liable to prosecution, but for one reason or another, we might want to give them a second chance to demonstrate remorse, rehabilitation, and that they have learned the error of their ways. If the amnesty granted to individual officers and soldiers of the Confederacy were to be cited as an example, let us also remember that federal troops remained in the South until 1877. The only other comparable amnesty appears to have occurred following the Whiskey Rebellion in 1796, when Mad Anthony Wane led a column of federal troops into western Pennsylvania to enforce the new nation's excise tax on whiskey.
The premise here is that we are dealing with people who knowingly and intentionally violated laws they were sworn to uphold, violating a fiduciary duty that extends far beyond a citizen’s general obligation to obey the law. Even the Pledge of Allegiance recited every morning by schoolchildren does not carry with it the solemnity and obligation that of the oath that we take upon entering governmental service, “…to protect and defend the Constitution of the United States against all enemies, foreign and domestic…” In a pluralistic society such as ours, no oath can be more sacred, and by extension, protecting the sanctity of that oath is the first order of business for any public official of whatever rank.
Again, I draw upon my personal history, looking for an analogous train of events that could lead to a solution. In February or March of 1975 (and I do not recall the specific date) I was an Attorney Advisor (GS-12) with the Office of Chief Counsel of the Urban Mass Transportation Administration, in Washington. The call had gone out from the Executive Office of the President for government lawyers to be assigned the Presidential Clemency Board, which was then ramping up a program to grant clemency to opponents of the Vietnam War were either in exile, principally in Canada, or who had been convicted of violating the Selective Service Act by refusing induction, or who were military personnel convicted by court-martial and discharged from the service for absence related offenses, or who received punitive administrative discharges to avoid going to trial.
Conceived in August of 1974, President Gerald R. Ford's seemingly generous proclamation languished in the Justice Department for approximately four to five months while departmental officials exquisitely debated the precise qualities of presidential clemency they hoped to apply. Those elevated discussions quickly terminated when it was discovered that the department was more than three months into the program and had yet to receive any single application for clemency.
So, what to do? Without getting too snide about this, Justice officials did what all bureaucrats do, they looked around for anything at hand that could demonstrate some sort of progress. What they had, was a list of correctional facilities maintained by the Bureau of Prisons, which included the name and mailing address of every correctional facility maintained by the federal government, state governments, and their political subdivisions. The thinking behind this was, even as the inmate populations of these detention facilities were incarcerated due to civilian-related offenses, there may be those whose criminal histories were in some way precipitated by an unfair punitive discharge or court-martial conviction, or some civilian crime related to the offender's objection to induction into the armed services during the Vietnam War. It was a stretch, to be sure, but the BoP had little else to go on, and the news media, principally the Washington Post, was beginning to make inquiries. So, a letter went out to each of these facilities announcing the clemency program, and expressing the Department’s hope that eligible offenders would apply to the program, and perhaps a grant of presidential clemency might eventually prove beneficial.
Within weeks, the Justice Department was inundated with literally thousands of applications from various jails and prisons around the country. That is where I came in, along with several hundred others, and was detailed off to the Executive Office of the President to try to make things work. And work we did; in all something over 23,500 applications were received, of which only 2,500 came from civilians who had been convicted in federal court, or who might be legally liable. At the height of our existence, we had a $10 million budget and a staff of 600, that included lawyers, law students, paralegals, and clerical personnel, and we were overseen by a board of presidential appointees headed up by former United States Senator Charles Goodell. Not to make light of the situation, we all worked very hard at this for about eight months, because we had to develop standards for evaluating these applications in terms of the severity of their offenses, the unfairness to which they had been subjected, in a subsequent criminal histories, and these were rehashed and refined and augmented on a daily basis as we and the board became more street-wise and savvy about how things actually worked. We also made a firm acquaintanceship with the Uniform Code of Military Justice, and knowledge, if not a little cynicism, about the Selective Service System.
Also, this being a Republican Administration, the board members also wanted to make a political point that applicants for clemency could not expect to get away cheap. Only 9,000 applicants were determined to be eligible for the President Ford's program, and those granted clemency were required to do up to two years alternative service, again administered by the dysfunctional Selective Service System, or in some cases, the Veterans Administration. Despite some modest successes, and lacking any sort of political support, the Presidential Clemency Program quickly and quietly faded away, and what remained of the problem was completed by the Department of Defense under President Carter, and with no eligibility for military benefits. As between the board and its staff, there was a great deal of mutual respect; acceptance of personal responsibility and obligation to serve if required were shared values, as was allegiance to the rule of law. Even the most partisan board members accepted the idea that the law’s requirements would be observed and enforced regardless of personal preferences. We each did our duty, and took great pride in doing so, regardless of of the thanklessness of our tasks, and the near certainty that most people would never hear of our efforts, much less care.
Based on that history, I see nothing remotely justifying the self-serving and specious arguments that Bush Administration apologists are making in demanding that we “move on”. Instead of principled opposition to government policy, or inability to conform to behavioral norms in a military environment that we as Presidential Clemency Board staff members so often encountered, we have instead a cynical manipulation of all institutions in public life, whether it be media, Congress, or public opinion. This is not simply the effects of poorly conceived and executed public policy. Rather, what we have seen are concerted and prolonged efforts to violate the norms of civilized behavior, and using public fear as the driving force behind it. The idea that Justice Department officials could conjure up written justifications for criminal conduct that their authors intended to be used to deflect opposition to that criminality, and not be held criminally accountable is itself an absurdity. This is no different, at least in my mind, from a lawyer who provides his client with an opinion letter that he knows the client will use to commit a fraud. In the financial world, that lawyer, and those who purported to rely on his advice despite objective evidence to the contrary, would go to jail, as should these people.
I consider this offense to be as serious as any in the federal criminal code. Those involved knew to a legal certainty, or were chargeable with such knowledge, that what was requested by the Bush White House constitute a direct and felonious breach of federal criminal law; and I for one would have no difficulty in concluding that the elements of criminal conspiracy, fraud against the government, and obstruction of justice are amply made out.
Therefore, I would require that any form of clemency be accompanied by an applicant's plea of guilt to an indictment or information, admission to facts, and demonstrated acts of contrition (beyond the two points given for acceptance of responsibility, per the Federal Sentencing Guidelines), coupled with a period of incarceration or home confinement, supervised release or a lengthy probation, depending upon the affected individual’s degree of culpability.
If selective service offenses and desertion from the military were part of the spirit of the times during the Vietnam War, our political and legal institutions required that applicants for clemency show due respect for the laws which so many violated, even with good motive. In the present day that principle should also prevail. Those who violated the law did so from positions of privilege and trust, and therefore, they were under special obligation. They allowed political ideology not only to cloud their judgment, but to engage in deceptive and dishonest practices to help ensure that their judgment would not be effectively challenged. To paraphrase Winston Churchill, these people attempted to hide what they were doing in a "bodyguard of lies", because the truth would have sent them packing. Aside from the sheer irresponsibility of what was done, this was serious criminality, and those responsible should be held fully accountable.
Finally, like the torture that the Bush Administration sought to hide from public view, an amnesty is unlikely to cause anyone to forget what happened. There needs to be an official recognition, and now. It is a matter of record that in April, 1945, General Eisenhower ordered German civilians living in the villages near recently liberated concentration camps to march through them so that they could smell the stench of those places and see with their own eyes the piles of emaciated bodies so that they could never deny them, to themselves or to anyone else. While we cannot march a citizenry in denial through the Guantanamo Bay detention facility so as to know the look, feel, sounds, and smell of the place, we can do what national honor and self respect demand, to make known now what inevitably will be found out by others.
If we do nothing, the shamefulness of the episode stains us all, because we would now be complicit in that cover-up as well; and I, for one, will not be a party to that.
