Is it a crime to want guilty officials tried and punished?

Volokh Conspirator Orin Kerr thinks that the plan to hold a law-school conference about possible war crimes trials for Bush and his cronies might be of interest to the Secret Service. I can’t imagine why.

The dean of the Massachusetts School of Law at Andover &#8212 an institution of which, despite its undoubted eminence, I had previously been unaware &#8212 announces a conference to plan war crimes trials for the current ruling clique and mentions the death penalty approvingly. (I wouldn’t be surprised if this was the only approving mention of the death penalty ever made by a member of that law faculty, but let it pass.)

Orin Kerr notes, no doubt correctly, that Michelle Malkin might well find occupation for her (feeble) literary gifts and (warped) sense of humor in making fun of the enterprise. But Kerr adds: “And I wouldn’t be surprised if the Secret Service finds it worth following up, too.”

Well, I would be surprised. But not more surprised than I am at finding a law professor suggesting that an academic conference discussing legal strategy might fall under the purview of the Secret Service, merely because one of the defendants in the imagined trials would be the President of the United States.

I won’t object if you say that trying Mr. Bush and his cronies might be politically unwise, and inconsistent with the Obama mission of reducing partisan animosity, or that it might prove impossible in practice to gather the requisite evidence. I’ll listen respectfully, though I won’t agree with you, if you add that as a matter of policy Presidents shouldn’t face criminal trial for their official acts. (And I’ll note that the Constitution specifically provides that, although the only penalties assessed against officials convicted on impeachment are dismissal and incapacity to hold office again, the defendants remain vulnerable to criminal prosecution.)

But to suggest that raising the issue ought to attract the attention of a criminal enforcement agency strikes me as absurd.

The organizers of the conference may well be silly people, but the underlying idea isn’t silly at all. Here’s their case, as I understand it, with my reactions to each item in italics following that item.

1. The United States has inflicted torture on captives in the course of the wars in Afghanistan and Iraq, both directly and by the use of foreign intelligence services as proxies. [Certainly true. BushCo officials have admitted waterboarding, hypothermia, stress positions, and sleep deprivation.]

2. Torture is forbidden by domestic and international law. [True.]

3. The relevant domestic statute provides the death penalty if the victim dies. [True.]

4. Liability under that law isn’t limited to those actually turning the rack; those who give the orders are also vulnerable. [True, though again the issues of proof are complex.]

5. George W. Bush, Richard Cheney, and other senior officials ordered that torture be carried out, both as a matter of general policy and in specific instances. [Seems likely, but establishing beyond reasonable doubt exactly what orders were given, by whom, with what knowledge of how those orders would be carried out would be a nightmare at trial.]

6. The law provides no exemption for officials, or for wartime actions. [True, though no doubt John Yoo will write a brief arguing that the President’s Commander-in-Chief power makes him constitutionally invulnerable to criminal liability for issuing such orders.]

Certainly it seems injudicious for a law dean to start speculating about the death sentence before a trial is held; sounds like prejudicial pretrial publicity to me. And it’s hard to imagine the proposed conference actually causing anyone to do anything, though that’s true of a depressingly large fraction of all scholarly activity. My preference would be for a truth and reconciliation commission instead of criminal trials, for all of the official crimes committed over the past eight years.

That said, precisely what is there here for the Secret Service to be interested in? The dean doesn’t plan to organize a lynch mob or a kangaroo court; the conference is to consider the legal processes by which alleged criminals in high places might be brought to book.

In a monarchy, of course, “encompassing” the king’s death, by legal process or otherwise, is high treason. But even those who claim effectively monarchic powers for the President don’t claim that the Constitution creates a monarchy in theory.

If it’s a violation of law to think, and say, that the current occupant of the White House might well have earned a trip to the gallows (if, and after, he is found guilty by twelve good men and true), then the Secret Service might want to visit me, too.

If Mr. Bush couldn’t do the time (only a few seconds, if the hanging is done properly; how he will spend eternity is a different question) then he shouldn’t have done the (alleged) crime. Haven’t we had about enough of this liberal criminal-coddling?

Update Antonio Taguba, the two-star general who ran the Abu Ghraib investigation, seems to agree with the law dean:

“After years of disclosures by government investigations, media accounts and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account … the commander in chief and those under him authorized a systematic regime of torture.”

Again, none of this is evidence until it’s been presented at trial. The President is entitled to the legal presumption of innocence, just as any killer caught with the smoking gun in his hand isn’t legally a murderer until the foreman says “Guilty, Your Honor.”

Second update It appears that planning for war-crimes trials isn’t restricted to venues as harmless (to the possible defendants) as the Massachusetts School of Law at Andover. War crimes are subject to universal jurisdiction. (Remember Augusto Pinochet’s arrest in London?) And some European prosecutors seem to be sharpening their claws. Under the civil-law system that prevails on the Continent, prosecutors are judicial rather than executive officials; they do not take orders from the prime minister or president.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: