Atypical US Policy – So high the leaders are – well above the law
Do you ever read an article – then afterwards thought you should not have done that?
Many things played on my mind after reading an article in the Guardian last night – the words – not necessarily the story – triggered memories and made me think about things that I preferred not to get involved with.
In order to clear my mind and concentrate on other ideas – I had to write these matters down – and I knew it would not be a short read.
The article I read was about an arrest – and the story behind that arrest was the result of the Italian Courts – in 2009 – doing the right thing.
“Twenty-three Americans were tonight convicted of kidnapping by an Italian court at the end of the first trial anywhere in the world involving the CIA’s “extraordinary rendition” programme for abducting terrorist suspects.
The former head of the CIA in Milan Robert Lady was given an eight-year jail sentence for his part in the seizure of Osama Moustafa Hassan Nasr, known as Abu Omar, who claimed that he was subsequently tortured in Egypt. Lady’s superior, Jeff Castelli, the then head of the CIA in Italy, and two other Americans were acquitted on the grounds that they enjoyed diplomatic immunity.
But another 21 alleged CIA operatives and a US air force officer were each sentenced to five years in jail. All were tried in absentia and those who were convicted will be regarded as fugitives under Italian law.
Extraordinary rendition, which has been criticised as “torture by proxy’, involves the snatching of suspects and their forcible transfer for interrogation to third countries – often those states where torture is routinely employed.”
That was the background and the full story behind this arrest from the Guardian UK (1) from November 4, 2009
The article that triggered everything was the arrest recently of one ‘Sabrina’ – who had a minor role before the rendition of translation – needless to say she ‘was’ involved in the matter anyway – this whilst employed by the CIA.
Yes the CIA – a covert government agency that meddles in illegal activities (2) and not the the only agency – NSA – numerous others.
The cleric who was illegally abducted – and subsequently proven innocent – made this comment.
“Sabrina and the others who were convicted are scapegoats. The US administration sacrificed them. All of those higher up in the hierarchy are enjoying their immunity,” he said. “These people higher up, without doubt they should be convicted in this case. They should face trial.” (3)
Agreed wholeheartedly – but drill down further and we have ‘immunity’ – and yes the hierarchy within the U.S. Administration cannot be touched.
Why did this play on my conscience so much?
The powers that be are immune – simple – it is not the ‘Rule of Law’ it is ‘politics’ and division within an Administration – the power behind the decisions that should be questioned and the ‘Rule of Law’ applied.
Do not get me wrong – immunity is technically a good thing – until it gets abused by the powers that be – for that we can thank one Pope Gelasius I (Circa 494AD). (4)
It is not one country – it is a fair few countries – but the one that irks me most through the blatant disregard for there own constitution and the international laws is non other than the US Government.
The actions of Obama – prior Presidents and that of the US Government are not transparent – in many cases their actions are unlawful – and yes against their own constitution or international law.
We hear about these through ‘whistleblowers’ – those that highlight the Government’s illegal actions usually end up without a job – in despair – and if against the Government the majority end up in jail (1) – a whistleblower is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organizationthat is either private or public. (5)
So one wonders – when the Government blatantly breaks the law (8) and the majority of whistleblowers lives end in despair -why do people stick their neck out to at their own risk?
Well because they do – it is the right thing to do – just ask one Edward Snowden and the other people named in the Timeline of Whistleblowers (4) – starting from Benjamin Franklin.
Then more recently Snowden – on the NSA and then one Bradley Manning who goes to jail whilst torturers go free. (9)(10)
I am amazed that the U.S. Government is so immune – from all their wrongdoings – I especially remember vividly the incredible storyline relating to the then President Nixon and his fall from grace and subsequent resignation. (11)
God forbid if those standards applied – if Presidents had to be accountable – if every Government agency had to be accountable and do the right thing. Then again if the latter was the case then one Hillary Clinton would be in jail.
There is a long line on indiscretions by leaders of countries – and dare I say that the list includes current and previous Presidents of the U.S. In the U.S. even those employees of the government that are found guilty – following the Government agencies direction are granted immunity – as was the case of ex President Bush’s CIA torturers. (12)
You can be an absolute liar and hypocrite – as in the case of the current and prior Presidents of the US – yet immune from prosecution?
Please refer to my prior articles on war crimes during Obama’s reign – War crimes bombing hospitals in Afghanistan and Syria – Drones stricken made under an ‘apparent’ executive order killing innocent civilians – and prior to that Bush and Cheney (13) – massive lies and deception to force the Iraq war – go way back to L.B.J. (14) yes the Liberty – if we look hard enough there are others – far too many.
I am aware on the Bush Cheney situation in as much there was no crime under U.S. law – as the only body that had the power to prosecute the then President George W. Bush at the time was the Congress of the United States.
Bush had been given the legal authority to invade Iraq by the Congress – as there was an explicit vote – that authorized him to use military force.
It is now called the Iraq War Resolution – with the vote 297 to 133 in the House – with 3 not voting. In the Senate the vote was 77 in favor and 23 against.
Mind you – Bush lied to the Congress in the lead up to the war and ‘could’ have been impeached on that basis – the basic charge being making substantial mis-representations to Congressional committees.
From various readings two Congressional representatives drew up 35 articles of impeachment and these articles were referred to the Judiciary Committee – note – by a large majority – for further consideration.
It was understood that the Committee would never take any further action on the matter.
So it is all politics – and a non-starter.
If George W. Bush – and Obama – were to be prosecuted for war crimes it could not be under international law.
With Bush’s Iraq excursion and given the UN Security Council resolutions relating to Iraq this would be an extremely difficult prosecution to carry out.
One must thank the Malaysians – their Kuala Lumpur War Crimes Commission – in early 2015 – for what is the first ever conviction of its kind anywhere in the world – the former US President and seven key members of his administration were found guilty of war crimes.
Bush, Dick Cheney, Donald Rumsfeld and their legal advisers Alberto Gonzales, David Addington, William Haynes, Jay Bybee and John Yoo were tried in absentia in Malaysia. (15)
For Obama however – on the war crimes in the bombing of hospitals in Afghanistan and Syria – I would dearly love these prosecutions to be carried out – not to mention the so called ‘executive order’ issued by him to carry out Drone attacks in Afghanistan – Libya – Syria – Yemen.
Immunity from prosecution is provided to elected leaders – head of states and other officials either for life – or during their time in office – in many legal and constitutional systems.
This may only be connected to matters directly related to office – or it may be for any prosecution – and this immunity has its origin from English common law based on doctrine that “rex non potest peccare” means the king (or queen) can do no wrong and the King could not be sued in his own courts.
It was Pope Gelasius 1 – who established sovereign immunity as a political principle – (4) as a mean to protect the sovereign pontiff and Holy See from trials and persecutions – mind you around that time they were absolute ‘tossers’ attempting to enforce the Church over the State – so it was necessary to protect the Pontiff.
Then that same concept was adopted in many countries as French presidential office carries with it, the immunity from all prosecution while the president remains in office.
In the U.K. – as too other Commonwealth countries – parliamentary immunity operates so that Members of Parliament cannot be sued for libel for what they say in Parliament. One does wonder though about blatantly misleading parliament Mr Blair.
The USA also follows the suit and adopted the same concept in the constitution – but – and you know I love buts – as the U.S. Supreme Court pointed out long ago, “no man in this country is so high that he is above the law. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is high time for the American people to uphold and defend this fundamental principle of equal justice for all, which is one of the most important American values now ingrained in the 14th Amendment of the Constitution “equal protection of the laws”. (16)
On criminal prosecution of an incumbent President I managed to find a quote by John H. Kim, Esq.
“in free countries the law ought to be king; and there ought to be no other. Nothing in the international law, U.S. Constitution, federal statues or court cases provides a blanket immunity for an incumbent President or other federal officials from criminal prosecutions. History and public policy also argue against such immunity.” (17)
So what happened?
Politics happened – protection – corruption – in the end it is those that have no ‘power’ that end up in jail.
I made a ‘presumption’ that trends are changing – as many States have waived the immunity to allow for civil suits as well as criminal prosecution – as one US President Clinton faced a prolonged court case over accusations of sexual misconduct and an impeachment attempt in Congress.
That failed dismally – cigars rule!
This then sends a clear message – not only to the leaders of other countries – but to the constituents – that is if they can think for themselves.
A not so brief legal eagle briefcase summary of this Law.
In United Kingdom, the Crown Proceedings Act 1947 extended the liability of the Crown to areas of tort and contract and allowed – for the first time – that civil actions against the Crown to be brought in the same way as against any other party.
So for as criminal trial is concern it is argued that a civil case like libel is one thing – and a criminal trial where the defendant faces the possibility of going to prison is quite another – so one of the most famous and controversial case in Stuart England’s history was of Charles I (1649) – who was the first monarchs to be put on trial for treason that led to his execution.
In U.S. v. Isaacs, the 7th. Circuit Court of Appeals upheld the conviction of former Gov. Otto Kerner, who was appointed as a Federal Judge and prosecuted for actions taken while he was Governor of Illinois.
He raised the issue that he could not be prosecuted criminally prior to a formal impeachment conviction. The 7th Circuit denied that defense and cites a long list of officials who were prosecuted prior to their impeachment. The weight of the authorities, hold for the proposition that there is no such legal theory as “absolute immunity from criminal prosecution of a public official recognized by the courts in the United States.
In United States v. Lee, 106 U.S. 196, 220, 1 S.Ct. 240, 261, 27 L.Ed. 171 – it was stated that:-
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with immunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it”.
In Nixon v. Fitzgerald (1982) – the Supreme Court ruled that the President is entitled to absolute immunity from liability for damages based on his official acts.
Justice Lewis Powell noted that the Court had never before ruled on the scope of presidential immunity. Many public officials have a limited, or “qualified,” immunity that applies so long as they have acted in “good faith.”
Some other officials, such as judges and prosecutors, have been given an unlimited, or “absolute,” immunity because of the special nature of their duties.
Giving the President only qualified immunity – Justice Powell observed – would make his actions subject to review by the judicial branch and might compromise the separation of powers.
Law suits could distract the President from his official duties.
The scope of the President’s authority and responsibility is so broad that it is not realistic to restrict his immunity.
Powell wrote that determining “good faith” would mean that the President’s motivations would have to be examined in each case – which would be highly intrusive.
Justice Byron White’s dissent argued that the majority’s rule was too broad – under it a President could “deliberately cause serious injury to any number of citizens even though he knows his conduct violates a statute or tramples on the constitutional rights of those who are injured.”
Clinton v. Jones, 520 U.S. 681 (1997), was a landmark United States Supreme Court case establishing that a sitting President of the United States has no immunity against him – for acts done before taking office and unrelated to the office.
In a unanimous decision, the Supreme Court affirmed the decision of the Court of Appeals.
In the majority opinion by Justice John Paul Stevens, the Court ruled that separation of powers – does not mandate that federal courts delay all private civil l suits against the President until the end of his term of office.
In his concurring opinion – Breyer argued that presidential immunity would apply only if the President could show that a private civil suit would somehow interfere with the President’s constitutionally assigned duties.
The Supreme Court noted that Nixon v. Fitzgerald gave the president “absolute immunity from damages liability predicated on his official acts” – but did not extend this immunity to actions that were clearly outside the scope of his presidential duties.
The major rationale of Fitzgerald was to remove the possibility that the threat of litigation would make the President “unduly cautious in the discharge of his official duties.”
Jones’s allegations involved acts that allegedly occurred before Clinton became President – so Fitzgerald’s reasoning did not apply and therefore Jones should be allowed to bring her case.
Finally, the Supreme Court acknowledged that the trial court judge would have the discretion to schedule the various aspects of the case to minimize disruption of the President’s official duties.
The Court ruled that it is not appropriate however – to automatically require the plaintiff to wait until the end of the President’s term in office.
International law however is structured differently and recognises ‘functional and personal immunity’ from prosecution and allows an accused to avoid prosecution for criminal offences.
Any person who in performing an ‘act of state’ commits a criminal offence is immune from prosecution e.g. President or Head of Government – senior cabinet members – Foreign Minister – and Minister for Defence.
Such officers are immune from prosecution for everything they do during their time in office.
In Mugabe, reported at (2004) 53 ICLQ 789 it was held that a warrant could not be issued for the arrest of Robert Mugabe on charges of international crimes on the basis that he was a presently serving President at the time the proceedings were brought.
Other examples are the attempts to prosecute Fidel Castro in Spain and Jiang Zemin in the USA. Yes initiated by none other than The Hegemon – the USA.
Plainly difficult to entertain the International Law to apply to U.S. Presidents – even for war crimes.
So if one really thinks that the President of the US is immune – in the United States then he is not and from my point of view should be prosecuted therein – to maintain the sanctity of the office in which he sits.
“no man in this country is so high that he is above the law. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.”
It is high time for the American people to uphold and defend this fundamental principle of equal justice for all, which is one of the most important American values now ingrained in the 14th Amendment of the Constitution “equal protection of the laws”. (16)
The question to the American people is will they?