Other developments have further bedeviled administration strategists. After Arizona senator John McCain prevailed in getting Congress to enact, by overwhelming bipartisan margins, a law that bans cruel, inhumane, and degrading treatment of foreign arrestees and insists that interrogation techniques follow traditional Army Field Manual formulations, Bush felt compelled to sign the legislation. Yet Bush also issued a “presidential signing statement,” which asserted the power to ignore any provisions of the new law that he thought encroached on his role as commander in chief. Later, Senate Judiciary Committee hearings, chaired by Pennsylvania Republican Arlen Specter, questioned the legality of presidentially ordered National Security Agency eavesdropping.
This past June, the Supreme Court made it crystal clear that the emperor was without legal clothes. In Hamdan v. Rumsfeld, the Court ruled not only that presidentially decreed military commissions to try captives were unlawful, but also — and this is a huge also — that the Geneva Conventions protect such prisoners. This had frightening implications for administration operatives and higher-ups. It meant that a decade-old criminal statute, the War Crimes Act of 1996, which authorizes American courts to prosecute violations of the Geneva Conventions, could now be applied to them. The highest court in the land thus supplied the legal basis for future prosecutions of American personnel involved in mistreatment of prisoners at Guantánamo and elsewhere, giving legal teeth to the concerns raised by McCain, Specter, and many others in Congress. Suddenly, the Italian arrest warrants foreshadowed likely developments at home.
Hamdan caused Attorney General Gonzales to jump into action: he is now seeking protective legislation — through amendments to the War Crimes Act — that would shield US personnel who dealt too harshly with war-on-terror prisoners, as a result of administration lawyers’ advice and orders from the commander in chief. The administration has good reason to worry. According to a tally kept by Human Rights Watch and reported by R. Jeffrey Smith in the Washington Post, “hundreds of service members deployed to Iraq have been accused by the Army of mistreating detainees, and at least 35 detainees have died in military or CIA custody.” Of even greater concern is Common Article Three of the Geneva Conventions, which defines war crimes to include “outrages upon personal dignity, in particular, humiliating and degrading treatment,” which is significantly broader than the administration’s definition of torture.
Recent history suggests that a riot of pardons is on the way, and it could easily reach the cabinet level. Recall the indictment of President Ronald Reagan’s defense secretary, Caspar W. Weinberger, for alleged perjury during congressional investigations into the Iran-Contra scandal in 1987. The current president’s father, George H. W. Bush, pardoned Weinberger and five others during the final days of his administration in 1992, on the not-implausible theory that the prosecutions sought to punish policy differences rather than real crimes.
Of course, torture and massive privacy violations seem more akin to real crimes than do the policy differences Bush the elder invoked to justify his Iran-Contra pardons. It is therefore unlikely that a member of the administration or a lower-echelon operative could credibly defend himself by claiming he believed in good faith that the president possessed the “inherent” authority to order torture. This absence of a “just following orders” defense, then, offers all the more reason to think that the son will emulate the father and grant a slew of pardons during his final weeks in office. After all, even if Gonzales gets his War Crimes Act amendments, the chilling lesson from Italy still applies: a new government could always reverse it. So why would the “decider” in chief — who’s never met a presidential prerogative he didn’t like — turn away from the ironclad protection offered by pardons? Count on it: he won’t. After all, a pardon, like a diamond, is forever.
