A Conference On Presidential Powers And Stealth Immunity For BushCo by Lawrence R. Velvel - Dean, Massachusetts School of Law

As written of here in advance, on October 14th and 15th a conference on ever increasing presidential powers was held at the Massachusetts School of Law, in Andover (MSL), where this writer is Dean. The conference was even better than had been hoped. Many leading scholars in the field delivered speeches or remarks that ranged from the historically analytical to the spellbinding. At the end, this writer was supposed to deliver a summary of what was said, a summary of themes and future paths. But it could not be done. There was simply too much that had been said, too many ideas, both historical and future-oriented, that had been discussed or floated.

A true summary of the proceedings has to await the availability of DVDs of the proceedings or perhaps even the transcript of them. The possibility of a true summary is thus at least some weeks off. But it is possible even early on to list a few of the important ideas that surfaced, sometimes repeatedly. They would include:

The framers intended Congress, not the President, to be the powerful political branch. They greatly feared a powerful Executive. But the founders’ intent is at the opposite pole from what now exists.

Congress, contrary to what the founders believed would occur, does not protect its institutional prerogatives against Executive encroachments.

The commander-in-chief power was not intended by the framers to give the President the powers that Bush, Johnson and others have claimed (usurped under it).

The existence of a large standing army has been a major contributor -- possibly the major contributor -- to the growth of presidential power since 1950.

Executive secrecy has contributed to the President’s overwhelming power. Many of the reservations claimed in Bush’s signing statements are designed to foster Executive secrecy.

The number of oversight hearings held by Congress has declined. This too contributes to increasing presidential power.

The Executive has been engaged in manifold abuses of power.

It is crucial to find some ways to put more power into the hands of the minority in Congress. Perhaps there should be some American equivalent of the Prime Minister’s question time in the British Parliament. Or (better yet, I think) perhaps the minority in Congress should have subpoena power.

The Executive, and George Bush in particular, were hell-bent on using the recent act relating to habeas corpus and military tribunals as a vehicle for gaining immunity for the illegal torture that they had long authorized and perpetrated. It was generally felt that the clauses of the act providing such immunity were a serious blot on America.

One must listen to the Nixon tapes to really grasp how rotten a human being he was. (Speaking personally, one wonders how many decades it will take for America to wake up to the same realization about the second Bush).

The question of increasing Executive power is thought by some to be the most fraught and important issue facing the country. This is a point with which I agree, for reasons that will become clear below.
I believe this summary is reasonably accurate though very incomplete. A fuller summary, like access to the entire proceedings themselves, must await the preparation of DVDs of the conference, transcripts of it, and/or the publication of the proceedings in book form. The DVDs, which will not only be available as DVDs, but will also be put on the internet by MSL for viewing by computer and will be made downloadable by iPods, should be available in a matter of weeks. Transcripts, which will also be placed on line by MSL, will take a bit longer, and a book longer still. But these various means of modern communication will make the proceedings available in several ways for teachers, classes, and citizens who are interested in the subject of growing presidential power and want to know what some of the leading experts think.

One would especially hope that the materials will be used in colleges and universities. War, particularly long, protracted wars, are the most affective upon this nation of all human events. What the Civil War and World War II meant for the daily lives of millions of citizens should be known and immediately comprehensible to any American who knows any history (a qualification which, I gather, would exclude most citizens these days, which is disastrous for the nation). Even wars that are less cataclysmic, though nonetheless long and major, have the most serious effects. Perhaps I can do no better in this regard than quote the opening paragraph of a book I wrote 36 years ago about the Viet Nam War:

“Vietnam.” The very name is associated with crisis. For as even the least perceptive among us must know, the war in Vietnam has contributed a goodly share to several of the highly serious and deeply troubling crises which have been plaguing the United States. Most of the crises which have been caused or exacerbated by the war have been very noticeable to the public, and the war’s effect upon them has been no less noticeable. For example, it is difficult to escape knowing that America has faced serious economic problems, such as inflation and balance of payments difficulties, which have resulted at least partly from our vast war expenditures. Equally apparent is the fact that the war has fueled a generation gap which has pitted many of our young people against many of their elders: the contending groups are locked in mutual lack of understanding, mutual distrust, mutual dislike, and mutual immoderation. It has been only too obvious that energy and money which have been poured into the war might otherwise have been spent to combat the poverty and urban decay which so plainly threaten our cities. By this diminution of the efforts to combat poverty and decay, by leading many blacks to bitterly, and perhaps even rightly, believe that the white man is perfectly willing to let them die for America in Vietnam but is not terribly willing to let them have adequate jobs or schools or houses in America itself, and by raising other difficulties both practical and ideological, the war has clearly heaped fuel upon the fire of an obtrusive racial crisis. The climate for lessening explosive international tensions plainly has suffered because of the war. And, unfortunately, this list of examples does not exhaust the catalogue of highly noticeable crises to which the Vietnam war has made a high, noticeable contribution.

Even a war like Iraq which does not on an immediate level engage most Americans, a war whose burden falls on relatively few, a war which the President reprehensibly and for political purposes has “responded” to by telling people to go on living their lives in the ordinary way, creates havoc despite its lack of practical effect on most people. Our politics, our civil liberties, our now longstanding, well warranted disdain for government have all been worsened by the present botching by Bush.

Plainly, the causes, reasons for, and ways of avoiding and getting out of war are subjects which the colleges and universities of this country should study and teach. One of the most affective phenomena in getting our country into one war after another has been precisely the growth of presidential power that was discussed at the conference at MSL. Such growth is, for this reason as well as others, one of the crucial subjects for colleges and universities. Thus, to reiterate, one hopes that they will make use of what will soon be the wide availability of the materials from the conference held on October 14th and 15th.

* * * * *

The matter of the immunity provided to criminals in the recently enacted Military Commissions Act of 2006 raised especial ire at the conference. For the first time in American history, the Congress has provided immunity for the perpetrators of torture -- even murderers by torture -- and other horrible crimes, e.g., kidnapping even innocent people off the streets and delivering them to countries like Syria and Uzbekistan for torture.

The provision which immunizes this awful conduct, you know, did not receive nearly as much media coverage in advance as did the habeas corpus and military tribunal provisions of the bill. That, at least, is one man’s opinion, and in fact I think it received but little coverage. It basically was snuck in and enacted mainly by stealth - - not exclusively by stealth, but mainly by it. No doubt the stealth served the Executive’s purposes perfectly. For were it to have come extensively to public notice that for the first time the Congress was granting immunity to serious crimes, there might have been an outcry. Indeed, there almost surely would have been a vast outcry on the left and perhaps in the center as well, had most persons on the left and in the center known what was happening. (Maybe I am wrong but, as you can see from the foregoing remarks, my view is that there was relatively little public comprehension of what was occurring. This view seemed borne out even at the conference of experts on presidential power: even experts did not know what was going down.) Bush, having desired, authorized and known about torture from the beginning, and therefore being guilty of felonies under the domestic American law known as the Anti-Torture Statute, must have been perfectly delighted that the immunity provision was able to fly under the radar. One of the points made at the conference was that evil, like mushrooms, grows in the dark. Secrecy is, for certain, the handmaiden of evil. Flying under the radar is perhaps next best to enforced secrecy itself.

But now that the immunity provision has been enacted, just what does it mean. That is, exactly whom does it cover, and for what acts. I confess to not understanding it completely. It is written in lawyerese, with exceptions delimited by numerical references to other statutes entirely. The media seem generally to say the act gives immunity to the CIA but not the military. Maybe that’s right, although the wording would seem broad enough to cover the military and all other relevant persons too (unless the exceptions clause at the beginning of the relevant section means the military are not covered). But search me as to who’s covered. It would be nice if someone knowledgeable would explain exactly who is, who isn’t and why.

To given you more information of relevance, the Act says that (with exceptions that are unclear to me) “no court” “shall have jurisdiction to hear or consider” any action against the “United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”

This language would not seem to give complete immunity to BushCo and his fellow cohorts in the Executive, as will be discussed below.

Let us start with something the language does not do. It does not say that what BushCo and his tribe of corporate henchmen authorized, desired and/or did is not a crime. Torture of persons abroad remains a felony under federal law, although the new Act removes the jurisdiction of courts to hear cases on the crime and has thus eliminated courts’ ability to punish perpetrators. For the layman it will doubtless be hard to grasp how there can be a crime when an act cannot be punished. Such legal absurdities are common; they occur, for example, when a statute of limitations has run, even on murder. Beyond this, there will remain, as we shall see, certain situations in which it seems the cohorts are chargeable with crimes and punishable -- and can be made defendants in civil actions too. As well, authorizing torture, as BushCo did -- and which led to murder -- of course remains an impeachable offense. “All” that is lacking in this regard is political will and native intelligence: Apparently it was no good for Bill Clinton to receive fellatio in the oval office -- which surely was a disgrace -- but it is alright for BushCo to authorize torture and murder there.

The statute also grants immunity only when the tortured person is an alien. Now, this may be of little practical import because most of the people we tortured were aliens. But perhaps not all. It is possible that a few people whom we tortured abroad were Americans. (Did we torture John Walker Lindh abroad? There are some who in effect claim so, I think.)

Then there is also the question of actions by states, or by individuals, under state laws if torture was authorized, conspired about, or committed within a given state. (The federal Anti-Torture Statute only applies to torture abroad; punishment of acts committed in the United States was, I have read, left to state laws against assault, battery and murder. No doubt the Executive cohorts and their lawyers would argue that, when Congress said that “no court” shall have jurisdiction to hear torture cases, it included state courts as well as federal ones. But whether this argument could withstand serious legal analysis is very questionable (for much the same reasons that a federal law overriding state “tort” laws against deliberate or negligent misconduct by manufacturers that injures or kills people -- the kind of law sought by big business’ tort lawyer shills -- is questionable). The founders of this country would never have dreamed that a federal law could override state laws against assault, battery and murder, and their view certainly ought to prevail here.

The question regarding state court actions is not in truth one of law. It is more a question of what state prosecutors and state courts would or would not do as a political matter. Practically speaking, it seems a safe bet that, at least today, state prosecutors would not act against American torturers and murderers, nor would state judges fail to find some reason, however spurious, to dismiss cases brought by the tortured or by heirs of the murdered. Whether or not all this will be equally true ten or twenty years from today – indeed, whether the federal immunity law will still be on the books ten or twenty years from now -- remains to be seen. For what people’s views will be when BushCo is long gone remains to be seen. There have been major turnarounds in view previously -- Massachusetts, Illinois, California (and perhaps some other states too, if memory serves) ultimately tried (albeit unsuccessfully) to assert state jurisdiction in order to put an end to the Viet Nam War, attempting this in the face of decades of belief that it could not be done. As the Attorney General of New York, Elliot Spitzer began bringing successful cases against Wall Street, cases of a type that had long been thought the exclusive province of the federal government. One never knows what people might be moved to do in future decades if moved to utter disgust, as they likely will be, by what BushCo did in the early years of the new century.

You know, it is possible that even today, and even in the federal courts, the BushCo wall is starting to crack. There is, of course, the deep, ever widening disgust with Bush’s incompetence and malperformance that is threatening the Republicans’ current hold on both houses of Congress. There is the media’s willingness to call BushCo the inept that he is -- and always was. (Recently one read two comments by Richard Cohen, in The Washington Post’s National Weekly Edition, that echoed points which have been made here for years: Citing the recent book by Bob [The Egomaniacal Bore] Woodward, as well as “everything else I’ve read about the 43rd president,” Cohen said it was “apparent” that Bush “had no accomplishment to his name that did not stem from primogeniture.” He also cited Bush’s “steadfast belief that his is a divine mission.”) And even the courts are not rolling over and playing dead quite so rapidly. Recently a number of federal judges, in addition to Anna Diggs Taylor, have refused to immediately and with no questions throw out cases challenging the electronic eavesdropping on the governmental claim that the publicly admitted eavesdropping is a state secret. The other judges don’t have Judge Taylor’s background, so their views have a more tentative, cautious, well-maybe-the-president-is-the-king quality to them, and maybe they will ultimately throw out the cases, but the fact remains that they did not dismiss them out of hand, as one would have thought likely.

So what will happen years from now, what people will think and do then, remains in the womb of time.

Then there is the point which one thinks the most important of all with regard to the wording of the immunity statute. The law says no court shall have jurisdiction to hear any action relating to the treatment of a past or present alien detainee who “has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” This looks to me to possibly be a hole big enough through which to drive the proverbial truck.

Now, I don’t know any of this for certain, but aren’t there a lot of people who were detained, tortured or rendered for torture, and then released because ultimately considered to be innocent of any misconduct against the United States? Were these people ever “determined” “to have been properly detained as an enemy combatant”? If so “determined,” by whom, where and when? -- weren’t there in fact a lot of captives who never went before any tribunal? Or, if they did go before a tribunal, lots of them were found innocent, weren’t they? -- Otherwise why have they been released? Were all of them released because they all had suddenly become a threat no longer, even though they had once been properly determined to be enemy combatants? Why do I doubt this? The bottom line here is that it is entirely possible, it may even be very likely, that there are lots of people who were tortured and will still have a right to sue, despite the new immunity statute, because they were never properly determined to be enemy combatants and/or were even found innocent.

Perhaps Bush and company will claim that people were determined to be “properly detained as an enemy combatant” just because BushCo publicly said years ago that they were “enemy combatants” (although we now know that lots of these people never were combatants, but merely innocent guys who got swept up off the streets). Such a BushCo-ian claim would, of course, make a mockery of the statute’s apparent bow towards proper procedure. (In fact, the whole military tribunals aspect of the statute is a bow towards proper procedure.) In any event, we shall see what the BushCo people claim and what the courts do.

It is conceivably worth mentioning in this regard that the case of the Canadian whom we snatched and sent to Syria for torture (Arar) and the similar case of a fellow named Khaled El-Masri would seem to fit the situation. These guys were finally, in practical effect, declared innocent and released. Did somebody ever “determine” that they were “properly detained” as enemy combatants? If not, shouldn’t they be able to sue Bush and company for the torture they suffered, notwithstanding the immoral District Court decisions dismissing their cases?

* * * * *

As the reader can see, there is a fair amount about the statute that this writer does not understand. This is in part because of the way statutes are often written, and the way this one is certainly written. Instead of clearly stating what they mean, for example, statutes will, as this one does in several parts, obscurely say that some other statute is amended by substituting some new word for some other word in some section of the other statute. Or statutes will say that certain sections of some other statutes constitute exceptions to the new one. Or they will trick things up in some other way. It is all very confusing to the layman, and equally to a lawyer who does not know and does not have time to read and study all the other statutes and the particular sections of them referred to. One frankly wonders about the morality of this method of writing statutes, a method that seems designed as much to hide the ball as anything else. (Of course, lawyers will give you lots of reasons why these convoluted ways of writing statutes are the only possible methods -- which I doubt, which I, in fact, think plainly untrue.)

In any event, it would be useful for someone to write some plain, easily comprehensible, knowledgeable piece about what the immunity statute means -- who it applies to, whom it doesn’t apply to, and when. Right now some of this seems unclear -- and one wouldn’t be shocked if it had been deliberately kept unclear lest lots of people learn what was being done and react against it. But until I learn that my understanding of the statute is wrong for some reason or is incomplete -- both of which are entirely possible -- it will be this writer’s opinion that the statute has some loopholes which lawyers and some of their clients can use in an attack on Bush, the Yale flunk-out, the Winnetka wrestler, and others of the utter bums, the truly bad human beings, who have been running this country.

In one man’s judgment it is of the utmost necessity that this nation begins looking for leaders who are honest, smart, open minded, and moral, instead of being cohorts, thugs in suits, bums, like our current leaders. The Kissingers of this world (and we now have learned that the original Kissinger played a role in the current debacle as well as the last one), BushCo, the Winnetka wrestlers, the Yale flunk-outs -- none of these are honest or moral, maybe none of them are open minded, a couple are not even smart, and the one or two who are smart are evil – smart and evil being a truly awful combination. Americans probably don’t like to think about it -- instead we mostly like to think that any regular guy can do a good job -- but this country had better start looking to elect people who are honest, competent, smart and moral. Otherwise, we are just headed for ever more trouble.

Frankly, the need to elect much better people, especially to the highest offices, a need which is not often discussed, did not to my recollection obtain mention, except for one brief comment, even at the recent conference on presidential powers. That even such a conference would not consider this need is a measure of how far we have fallen in connection with the needed traits. It strikes me that this need, too, is something which should be the subject of inquiry, research and thought at colleges and universities.

Lawrence R. Velvel is the Dean of Massachusetts School of Law. He can be reached at velvel@mslaw.edu.