by Charlotte Dennett, Esq.
Closing the Impunity Gap: How Lawyers and Judges are Holding Higher-Ups Accountable
The year 2011 will go down in history as a year of protest, from the Arab Spring to Occupy Wall Street to uprisings around the world. Of all the issues emerging from the massive demonstrations of popular discon- tent, one that connects them all is the pro- testers’ insistence on accountability. Aver- age people—the 99% if you like—are sick and tired of living under a double standard where the rich and the powerful not only get richer—all too often, by breaking the law—but also escape legal responsibility for their illegal acts.
As constitutional lawyer and Salon blog- ger Glenn Greenwald recently observed, one of the things that is driving citizen an- ger is
this chasm between how we treat or- dinary Americans in the justice system, imprisoning them for petty and triv- ial offenses, versus how we treat the world’s most powerful and wealthiest individuals, who can commit the kind of fraud on the massive scale that we saw in 2008 with no accountability, pure impunity.1
Case in point: prosecutors admit that they don’t have the time or the staff to ad- equately prosecute the higher-ups. The re- sult? According to The New York Times, “mortgage fraud and deed theft cost homeowners $4 billion to $6 billion annual- ly,” but “a mortgage fraud ring walks away with hundreds of thousands of dollars per house, and runs little risk of arrest.”2 Citizen discontent became so visible dur- ing the fall of 2011 that President Obama (himself not without criticism for his han- dling of the big bank bailouts and unre- solved economic crisis) was compelled to issue a response through White House Press Secretary James Carney on October 28. “The White House understood the frus- tration of people,” he said, “who need to make sure that Main Street and Wall Street to operate by the same set of rules.”3 Left out of the statement was the Oc- cupy Movement’s widespread disgust with Washington as well, not only for failed eco- nomic policies but for two long running wars that have exhausted the national trea- sury and caused the deaths of over 4,000 American soldiers and millions of civilians. When an Iraq war veteran became the first casualty after being hit by a police pro- jectile during demonstrations in Oakland, California, anger escalated even more and merged with calls for accountability from participants in the Arab Spring who were
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still clamoring for trials and harsh sentenc- es for the dictators who ruled over them for decades.
Some came to New York. Yemeni journal- ist and Arab Spring activist Tawakkul Kar- man, co-winner of the Nobel Peace Prize, made a surprise appearance at the Unit- ed Nations recently to fight against ef- forts by Arab Gulf states to give President Ali Abdullah Saleh immunity in return for his leaving office after thirty-three years in office. Speaking outside the UN, Kar- man called for the prosecution of the presi- dent, other Yemeni officials, and President Assad of Syria at the International Criminal Court. “They have to be held accountable and prosecuted,” she told reporters. “The attacks on peaceful protesters are crimes against humanity.”4
Her cries are now be-
ing echoed by protestors in Egypt in the second wave of their revolution against military rule.
For those of us who have participated in what I call the “accountability move- ment,” the Arab Spring, followed by Oc- cupy Wall Street, erupted as welcomed de- velopments following three years of rela- tive silence over legal impunity in the Unit- ed States and around the world. A quick review of the lawyers involved in the ac- countability movement puts the last year’s events in a broader context and shows how far it has yet to go.
From Impeachment to Prosecution
The movement began during the wan- ing years of the Bush administration when lawyers and human rights activists joined forces in an effort to bring about the im- peachment of President George W. Bush. Vermonters played a leading role in this ef- fort.5
can War Criminals.”6 Impeachment was al-
ready deemed “off the table” and prosecu- tions seemed the only alternative to hold- ing Bush administration officials account- able for alleged high crimes and misdeam- enors committed in office. As Dean Velvel would explain to me lat-
er, he and other like-minded attorneys had become disgusted over inaction follow- ing media reports of torture that had been committed by the CIA and U.S. military personnel against prisoners of war held in Guantanamo Bay (Cuba), Abu Graib (Iraq), and Bagram (Afghanistan). These lawyers knew that torture was illegal—prohibited by the Geneva Conventions of 1949,7
the
UN Convention against Torture of 1984,8 and the U.S. War Crimes Act of 1996.9 They dedicated the conference to U.S. Su- preme Court Justice Robert Jackson, who was chief prosecutor at the Nuremberg War Crimes Tribunals. Most came with the belief that the perpetrators who commit- ted these crimes should be tried in a court of law and, if found guilty, punished, as happened at Nuremberg, so that leaders would no longer act with impunty.10
The Legacy of Nuremberg
Their grievances were many, much of them subsumed under the catchall “shred- ding of the Constitution,” which included erosion of civil liberties under the Patriot Act, increased government surveillance, two illegal wars in Iraq and Afghanistan, illegal renditions (CIA kidnappings of sus- pected terrorists), and government autho- rization of torture. In September, 2008—just when the stock market was beginning to tank, but before anyone knew how serious the economic crisis would become—the dean of the Mas- sachusetts School of Law, Lawrence Velvel, convened a conference in Andover, Massa- chusetts, which he financed out of his own pocket. He provocatively entitled it “Plan- ning the Prosecution of High Level Ameri-
THE VERMONT BAR JOURNAL • FALL 2011
Nowhere in the modern age has the con- cept of accountability been more dramati- cally enshrined than in the Nuremberg War Crimes Tribunal following World War II. Chief prosecutor Justice Jackson had this to say in his opening statement: The common sense of mankind de- mands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power … We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.11
Christopher Pyle,12 a constitutional law
professor at Mount Holyoke College, was one of the lawyers at the Andover confer- ence who took the words of Justice Jack- son very seriously. Pyle started off a panel on torture with a statement guaranteed to cause shock and awe in an audience filled with non-lawyers: “Bush’s torture policy,” he said, as he leaned slightly into the podi- um, his face grey, his brow knitted in genu- ine concern, “is the work of attorneys.”
www.vtbar.org
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