George Bush has ackowledged in his recently published memoir, and in interviews related to it, that he took actions as president that violated international and domestic law—actions that were in direct conflict with his oath to defend the Constitution of the United States.
These admissions require a response if the United States is to continue to claim to be a nation governed by the rule of law, as opposed to the whims of powerful men. As American Civil Liberties Union executive director Anthony Romero says, "[The] former President’s acknowledgement that he authorized torture is absolutely without parallel in American history. The admission cannot be ignored. In our system, no one is above the law or beyond its reach, not even a former president.”
Honest players will recognize by now that the response to Bush’s lawlessness should have come during his presidency. The actions of Bush, and Vice President Dick Cheney, were, as serious constitutional scholars, authors, activists and lawyers on the left and the right explained during Bush’s presidency, impeachable offenses.
Unfortunately, House Speaker Nancy Pelosi took impeachment "off the table" and the United States never had an accountability moment during Bush’s presidency. Pelosi was wrong to do this, just as President Obama was wrong to suggest that it was appropriate—or even possible—to neglect the offenses of the Bush-Cheney administration and "move forward." To do so feeds cynicism and disrespect for the Constitution and the rule of law.
For the sake of the republic and as a necessary signal to Obama and his successors about the requirements of the Constitution and the rule of law, the Bush-Cheney accountability moment needs to come now.
Where to begin? Let’s start with the facts.
George Bush admits that he directly authorized the use of waterboarding on Khalid Sheik Mohammed and Abu Zubaydah.
There is no question that waterboarding is torture—not just in the eyes of the international community but in the eyes of the United States Department of Justice, which has made clear that the practice is a crime under the federal anti-torture statute
More significantly, it affronts the US Constitution, the Eighth Amendment to which states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Torture is, by definition, cruel and unusual punishment.
And Bush, by definition and by his own admission, has provided evidence that he violated his oath of office.
These admissions require action.
The American Civil Liberties Union has taken a first step in the right direction. The organization has asked Attorney General Eric Holder to have Assistant US Attorney John Durham open an investigation into questions relating to Bush’s apparent violation of the federal statute prohibiting torture.
ACLU Executive Director Romero wrote in a letter to the Department of Justice: “In light of the admission by the former President, and the legally correct determination by the Department of Justice that waterboarding is a crime, you should ensure that Mr. Durham’s current investigation into detainee interrogations encompasses the conduct and decisions of former President Bush.”
"A nation committed to the rule of law…cannot simply ignore evidence that its most senior leaders authorized torture,” argued Romero, who explained to Holder that "failure to fully investigate the role of the former President in the use of torture would also severely compromise our ability to advocate for human rights in other countries. The United States has been a champion of that cause for over half a century. Recently, while in Indonesia, President Obama urged that country to acknowledge the human rights abuses of the Suharto regime. He stated unequivocally that ‘[w]e can’t go forward without looking backwards.’ Without suggesting that our own experience is equivalent, it is clear that the United States’s authority to push for such accountability in other countries, and the willingness of those countries to follow our advice, would quickly unravel if we failed even to investigate abuses authorized by our own officials."
Romero is right. And he is not alone in his view.
Nan Aron of the Alliance for Justice explains that "in light of President Bush’s admissions and with abundant evidence available of egregious and criminal behavior, John Durham and the Justice Department must accelerate and intensify the investigation into the Bush Administration’s illegal torture practices. It is long past time for the Obama Administration to take seriously its commitment to uphold the law of the land and bring to justice both the senior leaders who authorized torture and the lawyers who served as their enablers. To do otherwise makes a mockery of the men and women of the military, who, since George Washington, have treated prisoners humanely and of our long-professed belief that the rule of law should guide the world."
But this is not just a matter for the Department of Justice to consider.
It is a matter for the US Congress.
Both the House and Senate judiciary committees have Constitution subcommittees. There needs to be an examination by one or both of these committees of the question of whether George Bush’s statements mark him an a man who violated his solemn oath to "faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
President Bush and Vice President Cheney continue to "enjoy" the benefits of the positions they hel—in the form of the pensions and extensive staff and structural supports afforded former members of the executive branch. As such, they are subject to the scrutiny of Congress. And that scutiny should be applied with the purpose of achieving accountability—not just for Bush and Cheney but for the executive branch in general.
The point is not punishment. Rather, it is clarification. Bush has acknowledged wrongdoing. That wrongdoing should be examined, documented and censured by the Congress. Ideally, Democrats and Republicans would accept the importance of a proper investigation and response—as it would, in many senses, be as much about the future as the past.
In these hyper-partisan times, however, it could be that House Republicans will be more focused on investigating the presumed failings of the current commander-in-chief, as opposed to examining serious constitutional questions. So be it. If only the Democrats who retain control of the Senate Judiciary Committee act, that will still have meaning.
Members of Congress who respect the intents of the founders—no matter what their party or ideology—need to recognize that when it comes to Bush’s admissions, the legislative branch has a responsibility that is at least parallel to that of the Department of Justice. The Department of Justice can and should address specific violations of law. The Congress must address to abuses of the Constitution. Both tracks of inquiry and response are vital.
Neglecting either track lets Bush off the hook. But that’s a minor consequence compared with the damage that such neglect does the republic.
A failure to act when a president admits to wrongdoing says that the Constitution applies only when it is convenient and dismisses the prospect that the United States might again be a nation guided by the rule of law.