Holding Bush Accountable
Some of the abuses of power in which President Bush and the top members of his team engaged may well constitute crimes.
Violation of FISA is a felony, and we know, through his own admissions, that Bush failed on at least forty occasions to obtain court approval for the wiretaps, despite the clear requirement of the statute that he do so. He even authorized wiretapping when the Justice Department refused to sign off on its legality. Subsequently the president worked with the FISA court to obtain authorization for the special program--a fact that strongly suggests court authorization could have been obtained much earlier, if not from the outset. Similarly, the president was able to persuade Congress to weaken the FISA protections a number of months ago. That shows that the president could have asked Congress to change the law from the outset (as he did with other parts of FISA). Instead, Bush took it upon himself brazenly and repeatedly to violate the law, authorizing wiretap after wiretap without seeking FISA court approval or revisions in the statute. No person, including a president, should be able to disobey the law this way.
Violation of the Anti-Torture Act is also a felony. This statute bars any US citizen from committing or attempting to commit torture abroad. Those who conspire with or aid and abet the torturers are penalized. The statute carries the death penalty when death results from the torture, and thus in those cases there is no statute of limitations on prosecution.
Undoubtedly Bush will claim that there should be no prosecution because the anti-torture statute cannot limit his powers as commander in chief. He may also claim that the mistreatment of detainees that was authorized did not constitute torture. Neither of these positions is a fatal bar to prosecution. The Supreme Court has ruled that a president's powers as commander in chief do not override statutes. And waterboarding, which the administration acknowledges took place (but on only three people), has long been viewed as torture.
If the investigations show that President Bush deliberately deceived the country about the Iraq War, then a determination should be made as to whether the lies are prosecutable under federal law. If so, a criminal proceeding on these grounds should be commenced.
The investigations and prosecutions should be conducted by one or more special prosecutors, since the Justice Department would have a serious conflict in prosecuting people who may claim to have followed its guidance or who were members of the department facilitating the torture.
The decision to prosecute Bush and lower-level officials who acted at the president's behest may seem too weighty to place in the hands of one person, no matter how seasoned, fair and reputable a prosecutor he or she may be, without establishing a full context for the prosecutions. After all, almost eight years of abuses have gone by with only a few whispers from the political establishment and the mainstream media about the need for criminal prosecutions. For that reason, designated Congressional committees or an outside commission should pursue inquiries into presidential abuses, particularly those that may also constitute crimes. These inquiries, which should not interfere with any criminal prosecutions, should aim to give the public an understanding of why the Bush Administration's actions are so grave and why the defense that a president may take the law into his own hands is unacceptable.
The most pressing reform involves the War Crimes Act of 1996, which would be a more effective tool for prosecuting detainee mistreatment than the Anti-Torture Act. The president and other top officials were concerned about prosecution under that act, which makes cruel and inhuman treatment of detainees a federal crime. Like the anti-torture statute, it carries the death penalty when death results from the mistreatment, which means there is no statute of limitations. Administration officials might think they can avoid criminal liability under the Anti-Torture Act by claiming the mistreatment isn't torture (as in President Bush's oft-repeated claim that we "don't do torture"); but they know that they can't avoid liability under the War Crimes Act, because "harsh" interrogation techniques--waterboarding, stress positions, threatening dogs, exposure to temperature extremes--are all clearly cruel and inhuman. They can't get around the War Crimes Act with definitional tricks.
Following White House counsel Alberto Gonzales's advice in January 2002 about how to "reduce the likelihood of prosecution" under the War Crimes Act, President Bush opted out of the Geneva Conventions for members of Al Qaeda. Administration officials apparently thought this would enable them to avoid liability for mistreating those prisoners, because the War Crimes Act was intended to enforce the Geneva Conventions. But then the Supreme Court ruled in summer 2006 that the Geneva Conventions applied to Al Qaeda detainees, and the administration realized that something had to be done to prevent criminal liability under the act. So it quietly inserted a provision into the Military Commissions Act in October 2006 that made the War Crimes Act retroactively inoperative--meaning that past violations could not be prosecuted.
Retroactively nullifying the War Crimes Act was one of the Bush administration's most cynical acts with respect to the rule of law. In essence, it issued a blanket pardon to anyone who had violated the War Crimes Act, including the president and vice president. There was no examination of the facts of any particular case. The violations, whether egregious or minor, were swept under the rug. No one was ever to be called to account. The crimes were made to disappear--poof. This maneuver may be the worst embodiment of the doctrine of impunity for high-level government officials in our history. It cannot be allowed to stand.
Fortunately, the retroactive nullification can be undone and the original law resurrected. Once the War Crimes Act is restored, a special prosecutor should determine whether and how to prosecute under the act. But even if no prosecutions are brought against President Bush and his team, by restoring the original law, we put an end to the horrific situation in which a criminal statute is decriminalized after crimes are committed to protect people in the highest offices.
A second reform is limiting the president's pardon power. This must be done by constitutional amendment. One of the ways a president can execute illegal schemes is to assure subordinates that they will not face criminal liability. To prevent this kind of high-level conspiracy, the amendment should prohibit a president from pardoning anyone he or she appointed to office, or the vice president. Prohibitions against self-pardoning or pardoning in return for a bribe should also be clearly spelled out in the amendment.
A third reform would re-enact legislation creating a special prosecutor for crimes committed by high-level government officials. The original law was allowed to expire after the sorry excesses of special prosecutor Kenneth Starr. A new statute, devised to prevent such excesses, would permit prosecution of officials when the Justice Department cannot or will not investigate--as happened repeatedly during the Bush era. (The appointment of Patrick Fitzgerald in the Valerie Plame leak case was fortuitous; the attorney general was incapacitated, so the power to appoint a special prosecutor fell to a nonpolitical professional prosecutor.) The problem extends beyond the Bush administration: no attorney general can be expected to investigate the president who appointed him or her.
Sooner or later, America will confront the abuses of the Bush presidency head-on. The only question is whether we will wait for years--as Chile did with respect to bringing Gen. Augusto Pinochet to justice--or do it now, sending a clear signal that our country is back on track and firmly embraces the rule of law.