Obama Has to Hold Bush Accountable for the Laws He Broke

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

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.

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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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