The release of memorandums prepared by Bush administration lawyers on how–not if, but how–to torture prisoners confronts Congress with the sort of constitutional challenge its risk-averse members have a penchant for ducking. Over the past thirty-five years, the branch of government best positioned to curb abuses of executive power has repeatedly skipped opportunities to check and balance an increasingly imperial presidency. Just one month after Richard Nixon resigned in disgrace, when President Gerald Ford pardoned his predecessor, Senate majority leader Mike Mansfield and several members of the House Judiciary Committee suggested that the impeachment process could be reopened. But House Democratic leaders, fearing that the move would harm the party’s 1974 electoral prospects, stymied the initiative. California Congressman John Moss, a champion of open government, later complained, “The House should have completed its impeachment action. We were less than we should have been.”
On the matter of presidential accountability, the House has been less than it should be ever since. The chamber that refused to hold Ronald Reagan, George H.W. Bush and their henchmen to account for Iran/Contra abuses–and that took impeachment “off the table” even after revelations that George W. Bush and Dick Cheney had committed acts that former White House legal counsel John Dean identified as “worse than Watergate”–has remained a bystander as successive presidents have engaged in ever more sinister abuses of authority.
Wisconsin Senator Russ Feingold, chair of the Senate Judiciary Committee’s Constitution subcommittee, who has long urged Congress to get more serious about checking and balancing executive excess, is now rightly arguing that evidence of the Bush administration’s complicity in torture must be addressed. “Horrible abuses were committed in the name of the American people, and we cannot look the other way or just ‘move on,'” he says. But Congress must also confront its own complicity: members must recognize that their repeated refusals to address abuses by sitting and former presidents have facilitated a breakdown in the constitutional order.
This recognition must be joined with Congressional action to remove those who sanctioned and promoted torture from positions of public trust and, if inquiries so conclude, to hold Bush, Cheney and their top aides to account. Going after Jay Bybee, the former assistant attorney general who wrote the most noxious memo–outlining schemes for waterboarding, sleep deprivation, slamming prisoners against walls and putting them in “confinement boxes” with insects–would be a swift and aggressive opening gambit. Bybee is now a judge in the Court of Appeals for the Ninth Circuit; he should be impeached by the House and removed from office by the Senate.