By Jason Leopold

House Judiciary Committee Chairman John Conyers has proposed extending to 10 years the statute of limitations on war crimes, torture, and domestic surveillance in the event an investigation into the Bush administration’s controversial policies turns up prosecutable evidence against former officials after statute of limitations laws currently on the books expire.

Congress should immediately consider “extending the statute of limitations for potential violations of the torture statute, war crimes statute, laws prohibiting warrantless domestic surveillance, or for crimes committed against persons in United States military custody or CIA custody to ten years.”

The recommendation by the Michigan Democrat was one of 47 included in his 487-page report, “Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush“, published earlier this month.

Conyers has said he intends to aggressively pursue investigations into Bush administration policies enacted in the so-called “war on terror.”

In his report, Conyers called upon Attorney General designate Eric Holder to “appoint a Special Counsel, or expand the scope of the present investigation into CIA tape destruction [due to wrap up in early March], to determine whether there were criminal violations committed pursuant to Bush Administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.”

“To be clear, torture is currently banned under United States laws (under the anti-torture statute, the War Crimes Act, the Geneva Conventions, and the Detainee Treatment Act). It is an unfortunate state of affairs that these prohibitions have been called into doubt by the Bush Administration and its insistence that it may avoid these laws simply by redefining the term “torture.”

Regarding issues revolving around the legality of the Bush administration’s domestic spy program, rumors have swirled inside the Beltway and on blogs over the past week that Republicans have delayed the confirmation of Attorney General designate Eric Holder in an attempt to run out the clock on the statute of limitations and thwart any attempt by the DOJ to launch a probe into George W. Bush’s decision five years ago to reauthorize warrantless surveillance program without prior approval from the Justice Department. Under federal law, the White House needed to obtain recertification from the DOJ to operate the program every 45 days.

The rumors appear to be untrue but there are legitimate questions about the statute of limitations, which expire on March 11, 2009, on Bush’s unilateral decision to reauthorize the spy program absent a green light from the DOJ.

In March 2004, then-Attorney General John Ashcroft was hospitalized with acute pancreatitis and it fell upon former Deputy Attorney General James Comey to recertify the program. But Comey and his colleagues at the DOJ refused to do so because the program appeared to be illegal.

In testimony before the Senate Judiciary Committee two years ago, Comey said Bush, Dick Cheney, and then White House Counsel Alberto Gonzales tried to override his refusal to reauthorize the surveillance program by pressuring Ashcroft, who was hospitalized and barely conscious, to sign off on the program, which Ashcroft had refused to do.

So beginning on March 11, 2004, on orders from Bush, the NSA illegally operated the surveillance program for about three weeks when administration officials could not obtain approval from the Justice Department.

Speaking to National Public Radio Monday, Gonzales commented on the incident that took place at Ashcroft’s hospital bed saying he was sent “on behalf of the President of the United States” following a top secret meeting with Congressional leaders who agreed that the program should continue.

“We had just had a very, left a very important meeting with the Congressional leadership about a very important intelligence program that the Congressional leadership agreed with the President should continue because it was a particularly heightened period of threats against the United States and against our allies,” Gonzales said. “And I might remind your listeners, that the very next morning you had the Madrid train bombings and so it was a very serious period of time. We had a very important program that the Congressional leadership and the executive branch leadership seemed to feel that this was something that should continue.”

Still, the incident that took place at Ashcroft’s hospital bed and the decision by Bush to operate the program without approval is of particular interest to Conyers and one he said needs to be further investigated to determine whether crimes were committed.

It’s unknown whether Congress will act on Conyers recommendations to extend the statutes of limitations. But according to Scott Horton, a renowned human rights attorney, law professor, and contributor to Harper’s magazine, Conyers proposal, particularly with regard to allegations of war crimes and torture, makes legal sense.

In an interview, Horton said,  “statutes of limitation are procedural rules only, and when it comes to war crimes, it is a fairly common practice to change them after the fact.”

“They have for instance recently been changed to allow victims of forced labor camps in World War II to assert certain claims, as well as to revive the claims of persons whose property was seized by the Nazis or their collaborators before and during World War II,” Horton added. “The major question to ask is simple: did the people in question have a meaningful chance to assert their claims? Or was the government reasonably diligent in enforcing the criminal law? If the wrongdoing occurred as a matter of government policy, it may be impractical to expect someone to bring a claim while the government is in power.

“In this case, the Bush Administration pretended that war crimes were not crimes and it refused even to conduct preliminary investigations into them–all acts which may be viewed as extensions of a criminal enterprise. It would be entirely appropriate to consider the statute of limitations tolled for this period, and that may be affected by an amendment, which extends the term during which claims may be brought. Also there is a practical reason for the change here, since it makes sense for charges to be brought only after a careful and thorough investigation, and some of the charges here would be covered by a six-year limitation, meaning that they would have to be brought now. It would not be proper to press a prosecutor to act in such a rushed way on something that is so important.”

On issues related to unlawful domestic surveillance activities, Horton said the same considerations would likely apply.

Whether the Justice Department intends to undertake a criminal probe, however, is another matter and will be determined by a highly anticipated report due in about two months by Special Counsel John Durham that will determine whether federal laws were broken when the CIA destroyed videotapes that showed terrorist detainees being waterboarded by interrogators, according to three DOJ attorneys.

But Horton said several important developments over the last two weeks have made prosecution of Bush administration officials more likely absent Durham’s report, which does not delve into questions whether the interrogation acts depicted on the videotapes constituted torture.

“First, [retired judge and head of military commissions at Guantanamo] Susan J. Crawford–the senior most official of the Bush Administration responsible for the Gitmo trials–openly acknowledged that torture had occurred,” Horton said. “That constitutes an admission against interest and it makes it virtually impossible for the Justice Department to avoid an investigation.

“Second, Bush left office without issuing a blanket pardon, so all of his torture team is now fair game. While the Military Commissions Act of 2006 furnishes a shield that would block prosecution of ground-level personnel in most cases, there is no such protection for the policy makers or the lawyers who were involved; they are now vulnerable.

“Third, our NATO allies and UN officials are now openly calling for a criminal investigation and reminding the new administration that it is solemnly obligated under Article 4 of the Convention Against Torture to take enforcement steps under American criminal law, failing which it is in breach. It may well be that Obama will issue pardons or that a professional prosecutor will conclude that the facts are insufficient to press charges–but these conclusions can only be reached after a comprehensive criminal investigation, and that has not yet occurred.”

Indeed, Manfred Nowak, the United Nations Special Rapporteur on Torture, said in an interview last week with a German news program that “the United States has a clear obligation” to take action against Bush administration officials who violated torture statutes.  

“We have all these documents that are now publicly available that prove that these methods of interrogation were intentionally ordered by Rumsfeld,” Nowak said. “But obviously the highest authorities in the United States were aware of this.”

But Gonzales, in his interview with NPR Monday, doubted that he or anyone else would be prosecuted, let alone investigated, over the Bush administration’s interrogation and surveillance policies.

“I don’t think that there’s going to be prosecution, quite frankly,” Gonzales said. “Because again, these activities for the most part, based on what I know, and obviously there are going to be some actions and activities that I’m not aware of. But in terms of what people really focused on: they were authorized, they were known at the highest levels, they were supported by legal opinions at the Department of Justice. And so, based upon those facts, I think it would be difficult, again I can’t pre-judge it and Mr. Holder if he is confirmed will have to make a decision whether to move forward with a prosecution. But under those circumstances, I find it hard to believe.”