The People v. Bush: How to Prosecute a President

In the main foyer of the Daniel Patrick Moynihan U.S. Court of Appeals in New York, a giant female statute cloaked in white robes literally leaps out at the visitor, bearing aloft the scales of justice, equally balanced. She is blindfolded, signifying that justice must be blind, regardless of rank or class. She’s one of the oldest icons in history, dating back to the ancient Greeks. Her name is Lady Justice, and her plea for equal justice under the law has never been more relevant than today in the United States of America.

Many Americans feel her call, yet find themselves repeatedly let down by an atmosphere of impunity that still reigns in this country despite the departure of George W. Bush from the White House. The latest, most public example comes from two eminent physicians who wrote “Doctors Without Morals” in Monday’s New York Times. They have written an op-ed that decries the fact that “government doctors and psychologists who participated in and authorized the torture of detainees have escaped discipline, accountability or even internal investigations.” They ruefully point out that government lawyers who tried to legalize illegal torture under the Bush administration were at least subjected to a “transparent investigation of professional behavior,” whereas government doctors received no  scrutiny at all from members of their profession.

Those of us who care about justice and accountability can take some solace in the fact that Representative Jerry Nadler of New York has just forwarded on to the respective bar counsels of former Justice Department lawyers Jay Byee and John Yoo  the results of a five-year internal investigation of them by the Justice Department’s Office of Professional Responsibility (OPR). The OPR recommends disciplinary action against the two lawyers for their role in providing legal gloss to torture, a decidedly criminal act. 

Still, even this relatively positive news is a mixed bag. A top lawyer at the Justice Department over-ruled the OPR’s recommendation, instead letting both lawyers off with a mild reprimand for their “poor judgment.” Meanwhile, Georgetown Law Professor David Luban, writing in Slate this week, noted that state bar associations "tend to be cautious and politically timid, and experts have told me that the probability of action from either the D.C. bar counsel [against Yoo] or his Pennsylvania counterpart [regarding Bybee] was close to zero. “

This leaves us with two choices: accepting this grim prognostication, or getting off our duffs and fighting for the soul of America. Because let’s face it: We can no longer afford political timidity. At the heart of our struggle for accountability is a struggle for democracy, a struggle that takes us right to the top, to the “decider” and his gang of criminals who now live in comfort after authorizing the despicable behavior of doctors and lawyers and CIA interrogators and brought shame upon our country.

As I’ve noted previously, Yoo and Bybee are the lynchpins holding together the chain of criminal evidence leading directly to Bush’s White House. Their culpability is not just over justifying acts of torture, which is a crime under U.S. and international law. They memo’d up in order to help their boss, President Bush, find a way to U.S. soldiers into a pre-emptive, murderous war in Iraq. One of those ways was by issuing secret “legal” memos that created out of whole cloth  a “war time president” with nearly dictatorial powers. Another way was giving legal cover to the CIA for its torturing of at least three high-level detainees in 2002 and early 2003 to obtain false confessions concerning their (non-existent) connections to Saddam Hussein. Yoo and Bybee, along with a slew of compliant doctors in America’s torture chambers, became handmaidens to a policy designed to get us involved in a war based on false pretenses. Evidence abounds that these doctors and lawyers are complicit, along with the top people in Bush’s circle, in murder and war crimes. For this, they should all be prosecuted.