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The evil lies not with our President, dear friends, nor with our Justice Department, but with our laws. The fundamental governing principle here is that all federal courts are courts of limited jurisdiction, without the ability to consider any case that Congress has not authorized.

I fear I'm swimming upstream here. I actually share the palpable outrage that I find in the comment thread on David Harris Gershon's rec list diary, DOJ Asks Court to Grant Immunity to Bush, Cheney & Rumsfeld for Iraq War. How dare Obama's justice Department collaborate with Bush Administration War Criminals to prevent innocent victims of their malice from trying to recover damages in United States Courts?  There ought to be a way for such foreign victims of U.S. Government predation to hold our leaders accountable, shouldn't there? Even if we, as a nation, fail to do so at the ballot box?

Yet, legally, there is none. But, if I try to explain that "how dare", based upon a lifetime of law practice involving these issues, it could ignite a rox/sux pie fight that might relegate the discussion to yet another disregarded recent diary with 19 recs and 117 comments. This is important nevertheless.

Follow me out into the tall grass if you want to know about that "how dare".

I have been an assistant attorney general. I know what the duties and Constitutional responsibilities of the office amount to, from having performed them for nearly 10 years, though that was a while back.  At the state level, I have run divisions of the Attorney General's Office. Since then my law practice has remained focused on federal law and procedure and immunity questions continue to arise with some frequency.

I am therefore entirely familiar with the professional principals and ethics that necessarily guided Mr. Rupa Bhattacharyya, Director, Torts Branch, Civil Division, United States Department of Justice, when he swore out his affidavit that the war criminals in question were actually acting within the scope of their offices when they were alleged to have committed the crimes in question. I know that Mr. Bhattacharyya was not pitching in with some great conspiracy to dishonestly shield international miscreants from U.S. Justice. He was simply doing his duty.

Many have asked how the commission of war crimes could possibly be in the the U.S. President's job description? It isn't, of course, but, legally, that's not the issue.

I don't want to write a legal brief here. In order to prepare to write this post I did what I always do when I write about what the law is. I double check what I know against the court decisions, statutes and rules to make sure my ideas remain correct. I did that, but don't want to talk about that here. I think it's better that I explain the way I might to a jury.

This is like if you hire a guy to drive a truck for you. If he runs over a kid  because of negligence maybe you're on the hook because he's in the scope of employment, or maybe not, because he's on his own. But, no matter now bad he screws up, if he's doing something for you when it happens, you're on the hook for the damages. Although the issue in this situation is not immunity, it helps illustrate the problem of "scope of employment" in all legal matters.

At the level where Mr. Bhattacharyya (I love typing that name) operates, I'd like to ask anyone how they might possibly conclude that anything carried out on foreign soil by a President expressly authorized by Congress to use military force could lawfully be certified as outside the scope of his office?

Even if this case were to survive these preliminary defenses, there are innumerable other obstacles in the U.S. justice system equally capable of entirely derailing the case.

The U.S. has a very poor record of prosecuting its own war crimes. Congress has always obliged with the statutes needed to make it so.

The evil lies not with our President, dear friends, nor with our Justice Department, but with our laws.  


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