Obama Has to Hold Bush Accountable for the Laws He Broke

By Elizabeth Holtzman, The Nation. Posted January 16, 2009.

In connection with the conviction of I. Lewis "Scooter" Libby for obstruction of justice, the administration classified the notes from the FBI's interview of Vice President Cheney. Those notes need to be declassified so the country can better understand the role he and the president played in the effort to "out" a clandestine CIA employee in retaliation for her husband's public claims that President Bush was taking the country to war under false pretexts. The FBI's notes of the president's interview should be made public as well.

Prosecutions

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.

Reforms

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.

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Elizabeth Holtzman, a former US Representative from New York, is the co-author of The Impeachment of George W. Bush (Nation Books).

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