Pixie Dust Works on Statutes, Too

Pixie Dust does not merely work on Executive Orders. Nooo. It works on statutes, too. Because Gonzo said so.

Early in 2002, before the earliest incidences of torture (at least those we know of), Gonzo went further than any of the pixie dust we’ve seen so far. He told Bushie that Bush could pixie dust the War Crimes Act out of the way.

Today, for the first time, I saw a couple memoranda from early – early – 2002. January 25-26, 2002. The post-er over at Kos put them up with a timeline incorporating them into the torture which began in February, 2002. But that’s not what caught my attention. 

In one, Colin Powell is expressing his concerns about Bush/Cheney’s decision and plan to declare that the Geneva Conventions do not apply to people captured in the so-called War on Terror. And then in the other, Alberto Gonzales (then filling the job of attorney to the President), writes a memo to Bush, himself, explaining how Powell’s objections and concerns should not lead to Bush changing the decision he’s already made. 

From Gonzo’s memo to the President, commenting on and forwarding Powell’s request that the President reconsider his decision that Geneva did not apply to AQ or the War on Terror (page 2/4), we get these vignettes:

Substantially reduced the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).

– That statute, enacted in 1996, prohibits the commission of a "war crime" by or against a U.S. person, including U.S. officials. "War crime" for these purposes is defined to include any grave breach of GPW or any violation of common Article 3 thereof (such as "outrages against personal dignity"). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban.

. . .
Adhering to your determination that GPW does not apply would guard effectively against misconstruction or misapplication of Section 2441 for several reasons

– … it is difficult to predict what actions might be deemed to constitute violations of the relevant provisions of GPW.
– …
– Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.

So, as early as January 2002, they were worried about future criminal liability, and determined that a presidential decision that a certain treaty did not apply meant that a criminal statute which references that offending treaty … no longer could apply.

Look at the logical structure Gonzo posits:

1. A statute criminalizes certain defined conduct called "war crimes".
2. "War crimes" are defined by a particular treaty.
3. If the President decides that the treaty does not apply, then
4. The definition of "war crimes" does not exist, and therefore
5. The crime defined by the statute cannot be committed.

This, of course, omits from the discussion any reference to the fact that the Geneva Conventions, by their own terms, apply to protect all people and, further, that there exists specific language in those Conventions removing exceptions and defenses like "Following orders" or finding exceptions to the prohibitions the treaties impose.

Emptywheel coined the term "Pixie dust" for Bush and Cheney’s habit of changing Executive Orders to suit their convenience post hoc without any written documentation to support the change. This assault on the War Crimes Act is another example of Pixie Dust, but it’s worse than doing it to Executive Orders.

This is nullifying a duly enacted statute – passed by Congress and signed into law by the President – by executive fiat. This is the American version of the Fuhrerprinzip – that the President’s word supersedes any written law.

Note, too, the gratuitous swipe of "enacted in 1996". They knew quite well who was in office in 1996 and spared no effort to impugn the Clintons at every opportunity. This was Gonzo waving a red flag in front of Bush and his Clinton hatred – a clear example of how a subordinate manipulates his titular boss.

There it is.

I’ve kept this diary short more to get it up and off my desk than anything else. But, I’m sure this is not the last time we’ll hear about this issue.

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