In a remarkable protest from inside the ranks of the military, First Lieut. Ehren Watada has become the Army's first commissioned officer to publicly refuse orders to fight in Iraq on grounds that the war is illegal. The 28-year-old announced his decision not to obey orders to deploy to Iraq in a video press conference June 7, saying, "My participation would make me party to war crimes."

An artillery officer stationed at Fort Lewis, Washington, Watada wore a business suit rather than his military uniform when making his statement. "It is my conclusion as an officer of the armed forces that the war in Iraq is not only morally wrong but a horrible breach of American law," he said. "Although I have tried to resign out of protest, I am forced to participate in a war that is manifestly illegal. As the order to take part in an illegal act is ultimately unlawful as well, I must as an officer of honor and integrity refuse that order."

A native of Hawaii who enlisted in the Army after graduating from college in 2003, Watada differs from other military personnel who have sought conscientious-objector status to avoid deployment to Iraq.

Watada told Truthout's Sarah Olson that at first he gave the Bush Administration the benefit of the doubt as it built the case for war. But when he discovered he was being sent to Iraq, he began reading everything he could, such as James Bamford's Pretext for War. He concluded that the war was based on false pretenses, ranging from the nonexistent weapons of mass destruction to the claim that Saddam had ties to Al Qaeda and 9/11 to the idea that the United States is in Iraq to promote democracy.

His investigation led him to question the very legality of the war. In an interview with Democracy Now!, he explained that as he read articles by experts on international and constitutional law, reports from governmental and nongovernmental agencies, revelations from independent journalists, writings by the Iraqi people and the words of soldiers coming home, "I came to the conclusion that the war and what we're doing over there is illegal."

First, he concluded that the war violates the Constitution and War Powers Act, which, he said, "limits the President in his role as commander in chief from using the armed forces in any way he sees fit." Watada also concluded that "my moral and legal obligation is to the Constitution and not to those who would issue unlawful orders."

Second, he claims the war is illegal under international law. He discovered that "the U.N. Charter, the Geneva Convention and the Nuremberg principles all bar wars of aggression." The Constitution makes such treaties part of American law as well.

These are not wild legal claims. Watada's conclusions are supported by mountains of evidence and experts, including the judgment of U.N. Secretary General Kofi Annan, who in 2004 declared that the U.S. invasion was "not in conformity with the U.N. Charter, and from our point of view ... was illegal."

Watada said he came to recognize that the military conduct of the occupation is also illegal: "If you look at the Army Field Manual, 27-10, which governs the laws of land warfare, it states certain responsibilities for the occupying power. As the occupying power, we have failed to follow a lot of those regulations." He told ABC News that the "wholesale slaughter and mistreatment of the Iraqi people" is "a contradiction to the Army's own law of land warfare."

While ongoing media coverage of the protest debates whether Watada's action is one of cowardice or conscience, so far the seriousness of his legal claims have been largely ignored. Watada's position is different from that of conscientious objectors, who oppose all wars. "I'm not just against bearing arms or fighting people. I am against an unjustified war," he said.

Can such a claim be heard in a military court? In 2004, Petty Officer Pablo Paredes refused to board his Iraq-bound ship in San Diego Harbor, claiming to be a conscientious objector. At his court-martial, Paredes testified that he was convinced that the Iraq war was illegal. National Lawyers Guild president-elect Marjorie Cohn presented evidence to support his claim. The military judge, Lieut. Cmdr. Robert Klant, accepted Paredes's war-crimes defense and refused to send him to jail. The government prosecutor's case was so weak that Cohn, in a report published on Truthout, noted that Klant declared ironically, "I believe the government has just successfully proved that any seaman recruit has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."

One of Germany's highest courts heard a case last year regarding a German soldier who refused to participate in military activities as part of the U.S.-led coalition in Iraq. The Federal Administrative Court issued a long and detailed decision in his favor, saying, "There were and still are serious legal objections to the war against Iraq...relating to the U.N. Charter's prohibition of the use of violence and other provisions of international law."

Watada's case comes amid a growing questioning of the Iraq war in all levels of the military. A February Zogby poll found that 72 percent of American troops serving in Iraq think the United States should leave the country within the next year, and more than one in four say the United States should leave immediately. While the "generals' revolt" against Defense Secretary Donald Rumsfeld didn't challenge the legality of the war per se, many retired military leaders have strongly condemned the use of torture and other violations of international and military law.

According to USA Today, at least 8,000 service members have deserted since the Iraq War began. The Guardianreports that there are an estimated 400 Iraq War deserters in Canada, of whom at least twenty have applied for asylum. An Army spokesman says that ten other servicemen besides Watada have refused to go to Iraq.

Resistance in the military played a critical role in ending the French war in Algeria, the Israeli occupation of Lebanon and the American war in Vietnam. Such resistance not only undermines the capacity of a government to conduct wars; it also challenges the moral claims that are used to justify them and inspires others to examine their own responsibilities.

Watada's action comes as the issue of U.S. war crimes in Iraq is inexorably creeping into the public spotlight. Senator John Warner has promised to hold hearings on the alleged Haditha massacre. The U.N. Committee Against Torture has declared that the United States is engaging in illegal torture at Guantánamo and elsewhere. An investigation by the European Union has found overwhelming evidence of the rendition of prisoners to other countries for torture.

Watada's highly publicized stand will no doubt lead others to ask what they are doing to halt such crimes. Unless the Army assigns him somewhere besides Iraq or permits him to resign his commission, he will now face court-martial for refusing to serve as ordered and possibly years in prison.

According to an ominous statement released by the Army commanders at Fort Lewis in response to Watada's press conference: "For a commissioned officer to publicly declare an apparent intent to violate military law by refusing to obey orders is a serious matter and could subject him to adverse action."

Watada's decision to hold a press conference and post his statements online puts him at serious risk. In theory, if the Army construes his public statements as an attempt to encourage other soldiers to resist, he could be charged with mutiny under Article 94 of the Uniform Code of Military Justice, which considers those who act "with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny." The conservative group Military Families Voice of Victory is already "demanding the Army prosecute Lt. Watada to the fullest extent under the Uniform Code of Military Justice."

Watada told Truthout's Olson that when he started to question the war, he he felt, like so many in and out of the military, that "there was nothing to be done, and this administration was just continually violating the law to serve their purpose, and there was nothing to stop them." But he realized that there was something he personally could do: "It is my duty not to follow unlawful orders and not to participate in things I find morally reprehensible."

"The one God-given freedom and right that we really have is freedom of choice," Watada says, echoing the profound message of Mohandas Gandhi. "I just want to tell everybody, especially people who doubt the war, that you do have that one freedom. And that's something that they can never take away. Yes, they will imprison you. They'll throw the book at you. They'll try to make an example out of you, but you do have that choice."

Even facing prison time, Watada is firm. "When you are looking your children in the eye in the future, or when you are at the end of your life, you want to look back on your life and know that at a very important moment, when I had the opportunity to make the right decisions, I did so, even knowing there were negative consequences."

Watada's recognition of his duty provides a challenge not only to those in the military but to all Americans: "We all have a duty as American citizens for civil disobedience, and to do anything we can within the law to stop an illegal war."

During the 2004 election, George W. Bush famously proclaimed that he didn't have to ask anyone's permission to defend America. Does that mean he can attack Iran without having to ask Congress? A new Congressional resolution being drafted by Representative Peter DeFazio, a Democrat from Oregon, can be a vehicle to remind Bush that he can't.

Bush is calling news reports of plans to attack Iran "wild speculation" and declaring that the United States is on a "diplomatic" track. But asked this week if his options included planning for a nuclear strike, he repeated that "all options are on the table."

The President is acting as if the decisions that may get us into another war are his to make and his alone. So the Iran crisis poses not only questions of military feasibility and political wisdom but of Constitutional usurpation.

Bush's top officials openly assert that he can do anything he wants--including attacking another country--on his authority as Commander in Chief.

Last October, Secretary of State Condoleezza Rice was asked by members of the Senate Foreign Relations Committee whether the President would circumvent Congressional authorization if the White House chose military action against Iran or Syria. She answered, "I will not say anything that constrains his authority as Commander in Chief."

When pressed by Senator Paul Sarbanes about whether the Administration can exercise a military option without an authorization from Congress, Rice replied, "The President never takes any option off the table, and he shouldn't."

The founders of the American Republic were deeply concerned that the President's power to make war might become the vehicle for tyranny. So they crafted a Constitution that included checks and balances on presidential power, among them an independent Congress and judiciary, an executive power subject to laws written by Congress and interpreted by the courts, and an executive power to repel attacks but not to declare or finance war.

But the Bush doctrine of pre-emptive war, as laid out in the 2002 National Security Strategy of the United States and reiterated in 2006, claims for the President the power to attack other countries--like Iran--simply because he asserts they pose a threat. It thereby removes the decision of war and peace from Congress and gives it the President. It is, as Senator Robert Byrd put it, "unconstitutional on its face."

Congressional Response

DeFazio is now preparing a resolution underscoring the fact that the President cannot initiate military action against Iran without Congressional authorization. He is seeking support from other House members.

"The imperial powers claimed by this Administration are breathtaking in their scope. Unfortunately, too many of my colleagues were willing to cede our constitutional authorities to the President prior to the war in Iraq. We've seen how that turned out," DeFazio told The Nation. "Congress can't make the same mistake with respect to Iran. Yet the constant drumbeat we're hearing out of the Administration, in the press, from think tanks, etc., on Iran eerily echoes what we heard about Iraq.

"It likely won't be long until we hear from the President that he can take pre-emptive military action against Iran without Congressional authorization, which is what he originally argued about Iraq. Or that Congress has already approved action against Iran via some prior vote, which he also argued about Iraq," DeFazio said. "That is why it is so important to put the Administration, my colleagues and the American people on notice now that such arguments about unilateral presidential war powers have no merit. Our nation's founders were clear on this issue. There is no ambiguity."

There is considerable evidence that military action against Iran has already started. Air Force Col. Sam Gardiner (ret.) told CNN that "the decision has been made and military operations are under way." He said the Iranian ambassador to the International Atomic Energy Agency recently told him that the Iranians have captured dissident units "and they've confessed to working with the Americans." Journalist Seymour Hersh wrote in The New Yorker that "American combat troops are now operating in Iran." He quotes a government consultant who told him that the units were not only identifying targets but "studying the terrain, and giving away walking-around money to ethnic tribes, and recruiting scouts from local tribes and shepherds."

Representative Dennis Kucinich of Ohio has written to Bush, noting, "The presence of US troops in Iran constitutes a hostile act against that country" and urged him to report immediately to Congress on all activities involving American forces in Iran.

Bipartisan Concern

Concern about presidential usurpation of the war power is not just a partisan matter. Former Vice President Al Gore this year joined with former Republican Congressman Bob Barr to express "our shared concern that America's Constitution is in grave danger." As Gore explained, "In spite of our differences over ideology and politics, we are in strong agreement that the American values we hold most dear have been placed at serious risk by the unprecedented claims of the Administration to a truly breathtaking expansion of executive power."

One of the stunning revelations of recent news stories is that top military brass are strongly opposed to the move toward military strikes. The Washington Post quotes a former CIA Middle East specialist that "the Pentagon is arguing forcefully against it." According to Hersh's reporting in The New Yorker, the Joint Chiefs of Staff "had agreed to give President Bush a formal recommendation stating that they are strongly opposed to considering the nuclear option for Iran."

The Bush Administration is putting military officials in a position where they will have to decide whether their highest loyalty is to the President or to the country and the Constitution. Lieut. Gen. Gregory Newbold (ret.), who recently called for the resignation of Defense Secretary Donald Rumsfeld, has criticized the US military brass for its quiescence while the Bush Administration pursued "a fundamentally flawed plan" for "an invented war." Now he is calling on serving military officers to speak out.

The "generals' revolt" has not publicly targeted the plans to attack Iran. But its central critique concerns Rumsfeld's disregard for the military's evaluation of the costs of the Iraq War and the scale of commitment it would require. If a similar disregard of the costs of an attack on Iran aren't already the subtext of their action, it certainly is a logical concomitant.

The American people are by now deeply skeptical of Bush's reliability in matters of war and peace. In a recent Los Angeles Times poll, 54 percent of respondents said they did not trust President Bush to "make the right decision about whether we should go to war with Iran," compared with 42 percent who did. Forty percent said the war in Iraq had made them less supportive of military action against Iran. But Americans are being systematically deprived of any alternative view of the Iranian threat, the consequences of American policy choices or the real intentions of the Bush Administration.

Smoking Gun, Mushroom Cloud

Congress and the military allowed the Bush Administration to bamboozle the country with false information and scare talk prior to the Iraq War--and they share responsibility for the resulting catastrophe. Now we're hearing again about a smoking gun that will be a mushroom cloud. It's up to Congress and the military to make it clear that the President does not assume monarchical power over questions of war and peace.

Congress and the American people--who should make the decision about war and peace--haven't even heard the forceful arguments of military officials against military strikes. Calling those Pentagon officials to testify--and protecting them against Administration reprisals--would be a good place to start.

Colonel Gardiner, who specializes in war games and conducted one for Harper's magazine that simulated a US attack on Iranian nuclear facilities, concluded, "It's a path that leads to disaster in many directions." Unless preceded by a UN endorsement or an imminent Iranian attack, it's also aggression, a war crime under international law and the UN Charter. If Bush or his subordinates have already ordered military operations in Iran, it should be considered a criminal act.

The DeFazio resolution could provide a rallying point for a coalition to act pre-emptively to put checks and balances on the Bush Administration's usurpation of constitutional powers. Indeed, the growing evidence that the United States is already conducting military operations in Iran demonstrates the urgency of placing limits on executive power. Anyone who wants to avoid national catastrophe should get busy defending it. Otherwise, George Bush's legacy may be: "He bombed Iran, and the collateral damage wiped out the Constitution."

The constitutional crisis facing the United States has only deepened as a result of Attorney General Alberto Gonzales' testimony on warrantless domestic spying before the Senate Judiciary Committee on Monday. Karl Rove's well-publicized scheme to tar critics of the secret NSA program as friends of terrorism has fallen flat.

Despite the committee's indulgence of Gonzales' stonewalling, the hearing revealed deep bipartisan concern about a presidency that defies all checks and balances. Committee chair Arlen Specter promised further hearings and said he would consider subpoenas for documents the Administration is withholding. These are the first indications that the institutions of restraint on presidential power, while comatose, may not be dead.

Further indications followed unexpectedly and quickly. The first was the call for a full Congressional inquiry into the warrantless spying program by Republican Representative Heather Wilson of New Mexico. A former National Security Council aide under George H.W. Bush, Wilson heads the House Intelligence Subcommittee on Technical and Tactical Intelligence, which oversees the National Security Agency.

In a New York Times interview Wednesday, she called for a "painstaking" review that would include not only classified briefings but access to internal documents and interviews with NSA staff. She also called for a briefing of the full House Intelligence Committee on the program's operational details.

Lo and behold, Gonzales and Gen. Michael Hayden, deputy to the director of U.S. national intelligence, showed up just hours later on Wednesday afternoon to brief the full House Intelligence Committee -- for the first time ever -- on the warrantless spying. Wilson claimed credit for the White House reversal but said, "I don't believe it complies with the National Security Act, which requires that the committees be kept fully informed of intelligence activities."

Meanwhile, the Republican chair of the House Judiciary Committee, James Sensenbrenner of Wisconsin, wrote a letter to Gonzales demanding answers by March 2 to fifty-one pointed questions about the warrantless surveillance program. And Specter announced he would introduce legislation requiring President Bush to have a special court examine the eavesdropping program.

These developments may seem like an earthquake after long years in which Bush scornfully defied all attempts at restraint and most of the Congress meekly acquiesced. But it is still a long way from effective checks and balances on executive power. The Bush Administration may still try to parlay its retreat into Congressional support for warrantless spying, just as it turned McCain's anti-torture bill into a legalization of prisoner abuse.

Seeking accountability

More forthright action is unlikely without public pressure. Turning Congressional concern into effective restraint will require a string of battles whose goal is not immediate victory but rather education of the public on why constitutional restraint on executive power matters. This kind of public education -- from Congressional hearings to courageous civic resistance -- is what finally terminated the criminal regimes of Senator Joe McCarthy and President Richard Nixon.

The next step toward any kind of accountability for Bush Administration criminality is to penetrate the wall of silence that surrounds Administration deceit. Leaks, ranging from the photos of Abu Ghraib to the Downing Street memos to the warrantless spying, have driven the anti-Bush backlash. Investigations like those proposed by Representative Wilson could well be the next arena.

The House Progressive Caucus has adopted an informal strategy of encouraging as many members of Congress as possible to introduce Resolutions of Inquiry. These ROIs allow members to pose factual questions to the President or Cabinet officials, and since the resolutions are privileged, relevant committees are required to report back to the House within fourteen legislative days.

In this session alone, Democrats have introduced twenty-two ROIs, the majority of which have centered on prewar intelligence, Plamegate and rendition. The assault began in July 2005, with Congresswoman Barbara Lee and others introducing a succession of seven ROIs in one month. The Downing Street memo ROI prompted extensive debate in the International Relations Committee about the role of Congressional oversight in relation to the war in Iraq, and while the resolution failed, the vote marked the first time all Democrats on the committee voted unanimously concerning Iraq.

On Wednesday, Progressive Caucus members turned their attention to questions of U.S. torture and rendition. Representative Ed Markey's resolution was one of three ROIs that came before the committee requesting documents on any person subject to torture after being transferred to another country by U.S. officials. It won support from Republicans James Leach, former chair of the Banking Committee, and antiwar conservative Ron Paul, but it was defeated by the Republican majority. Representative John Conyers and others now have their sights set on the NSA spying controversy, with four more ROIs expected to come up in the next few weeks.

The Senate is anticipating its own battles over information access and Congressional oversight. Last December, in response to the Administration's claims that Congress had access to the same intelligence as the President when deciding to go to war in Iraq, Senator Ted Kennedy offered an amendment to the Intelligence Authorization Bill requiring the disclosure of the President's Daily Briefs. The amendment passed with the support of Pat Roberts, Republican chair of the Intelligence Committee. The measure also included two other amendments requiring information on U.S. rendition policy. In response, for the first time twenty-seven years, the Senate failed to pass an intelligence authorization bill because an unknown senator placed a hold on the bill. Kennedy has refused to back down, promising a head-on clash with the Administration.

Abuse of Presidential authority is likely to come up in other venues as well. A debate lies ahead on renewal of the Patriot Act. Senator Specter has promised to hold hearings on the Guantánamo prison. The Senate leadership has promised Intelligence Committee hearings on the abuse of prewar intelligence. Looking further to the future are Representative Conyers' proposals for a special prosecutor, a vote of censure and a select committee to investigate impeachable offenses by President Bush. Human rights groups have recently brought suit to find NSA spying unconstitutional. And of course, there are the upcoming Congressional elections.

Foiling Rove's strategy

At the January meeting of the Republican National Committee, Karl Rove explicitly laid out a strategy to win the 2006 election by stigmatizing the Democratic Party as weak on national security. Bush, Cheney and Gonzales have followed Rove's script in their aggressive defense of warrantless NSA spying.

Nothing would make Rove happier than to have warrantless spying and other abuses of presidential authority treated as a partisan issue of Democrats against Republicans. But they aren't. As Al Gore recently observed, "Democrats as well as Republicans in the Congress must share the blame for not taking sufficient action to protest and seek to prevent what they consider a grossly unconstitutional program." Specter told the Washington Post, "I think they are seeing concerns in a lot of directions from all segments: Democrats and Republicans in all shades of the political spectrum."

One key to foiling Rove strategy is to treat government lawlessness as a nonpartisan concern. The combination of bipartisan complicity and bipartisan concern opens a new opportunity to split support for Bush's criminal activities and to build a coalition to terminate them.

This is possible because Rove's script isn't playing so well even in the Republican Party. Insight magazine quoted Republican Senator Chuck Hagel of Nebraska as saying, "I didn't like what Mr. Rove said, because it frames terrorism and the issue of terrorism and everything that goes with it, whether it's the renewal of the Patriot Act or the NSA wiretapping, in a political context." Before the Gonzales hearing Specter said that the spy program of his own party's President is in flat violation of the law. In a post-hearing interview with the Washington Post, Specter said of Gonzales, "He's smoking Dutch Cleanser!"

The Republican resistance is even more impressive given an Insight magazine report that Rove has threatened to put any Republican on the Senate Judiciary Committee who votes against the President on his blacklist, denying them political and financial support. Despite that, four of the ten Republicans on the committee, including South Carolina's Lindsey Graham, raised doubts about the legality of the NSA program.

Republican politicians are faced with contrary pulls. On the one hand they are fearful, as Rove warned them that the defection of even a few Republicans could be catastrophic for the 2006 elections. On the other hand, if the Bush Administration is crashing, they have an interest in distancing themselves from it so that they don't go down with it. Then there's always principle: Norman Ornstein, head of the American Enterprise Institute, estimates that a majority of Republicans in both houses, if polled in secret, would be concerned about the government's invasion of privacy.

Another key to foiling Rove's strategy is to focus on the fundamental issue of constitutional checks and balances on presidential power. The issue is not whether Republicans or Democrats care more about protecting Americans against terrorists; the question is who -- in or out of either party -- will stand up for the principles of constitutional democracy?

Conyers exemplifies what it means to articulate that frame. He told The Nation, "There is no doubt that our nation is at a constitutional crossroads, and the domestic spying scandal is just the tip of the iceberg. We can continue down the path of an out-of-control executive unwilling to account for his actions and a Congress unable to muster the will to challenge him, or we can return to a system of checks and balances, where Congress performs genuine oversight and stands up for our citizens' rights and liberties."

Such a frame both allows and requires the entire spectrum of Bush Administration criminality to be painted as part of the same picture: not just warrantless domestic spying but lying to Congress about weapons of mass destruction; conducting an aggressive war in violation of international law; engaging in torture of terror suspects; outsourcing of torture through "rendition"; secret prisons; use of white phosphorus and other illegal weapons in Iraq; and multiple other violations of national and international law. These are all actions that have been conducted and justified on the basis of an antidemocratic, anticonstitutional doctrine of unlimited presidential power.

None of this would be happening without the growing public distrust of President Bush and outrage over his debacle in Iraq. They underlie the Administration's inability to keep Congress in line. They are also the primary reason Rove's plan to wave the bloody shirt of 9/11 is less and less effective. But that growing alienation needs to find expression in a repudiation of those in high places who have committed and justified crimes -- and an irresistible public demand that those who are supposed to hold them accountable step forward to meet their responsibilities.

Bush's retreat on Congressional oversight of NSA spying is a small step, but it demonstrates the Administration's vulnerability to a bipartisan challenge based on constitutional principles. What is at stake is not just punishing the crimes already committed by the Bush Administration but making it possible to prevent Bush and his successors from committing similar or worse offenses in the future.

A jury verdict in Memphis late last year caused little stir among the general public, but it may have caught the attention of Dick Cheney, Donald Rumsfeld, and other high officials of the Bush administration. The jury found Colonel Nicolas Carranza, former Vice Minister of Defense of El Salvador and now a U.S. citizen living in Memphis, responsible for overseeing the torture and killing in that country 25 years ago. Could similar charges be brought against high U.S. officials for the actions of their subordinates in Abu Ghraib, Falluja, and Guantanamo?

Carranza was sued by victims of armed forces under his control. The jury applied the principle of "command responsibility," which holds a superior legally responsible for human rights abuses by subordinates if the official knew or should have known about them and failed to prevent them or punish those who committed them.

Intelligence agency whistleblowers recently leaked to ABC News a list of six "Enhanced Interrogation Techniques" authorized for CIA agents in mid-March 2002. The agents, according to an ABC News report, did so "because the public needs to know the direction their agency has chosen."

The techniques included "Water Boarding:" "The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt." CIA officers who subjected themselves to the technique lasted an average of 14 seconds before caving in. According to John Sifton of Human Rights Watch, "It really amounts to a mock execution, which is illegal under international law."

President Bush has said "We do not torture." But according to a classified report by the CIA's own Inspector General John Helgerwon, the techniques appeared "to constitute cruel and degrading treatment under the [Geneva] convention." If so, they are likely to be crimes not only under international law, but under the U.S. Anti-Torture and War Crimes Acts.

Where they have acknowledged prisoner abuse, Bush administration officials have often blamed it on a few "bad apples" at the bottom of the chain of command. But under the principle of command responsibility, this is no excuse -- and no legal defense.

Colin Powell's top aide, Colonel Larry Wilkerson, said late last year that the United States has tortured and, "There's no question in my mind where the philosophical guidance and the flexibility in order to do so originated -- in the vice president of the United States' office."

According to Wilkerson, "His implementer in this case was Donald Rumsfeld and the Defense Department." Wilkerson explained, "The vice president had to cover this in order for it to happen and in order for Secretary Rumsfeld to feel as though he had freedom of action."

The former commander at Abu Ghraib prison, Brig. Gen. Janis Karpinski, confirms Wilkerson's charge: Abusive techniques at Abu Ghraib were "delivered with full authority and knowledge of the secretary of defense and probably Cheney."

This is not just a question of past abuses. According to Wilkerson, "There's no doubt in my mind that we may still be doing it." When the vice president of the United States "lobbies the Congress on behalf of cruel and unusual punishment" Wilkerson says he can "only assume" that "it's still going on."

Asked whether Cheney was guilty of a war crime, Col. Wilkerson said the vice president's actions were certainly a domestic crime and, he would suspect, "an international crime as well." Wilkerson says his charges are based on an "audit trail" he prepared for Secretary Powell, including government memoranda and reports from the International Committee of the Red Cross.

Criminal investigation is warranted where facts or circumstances "reasonably indicate" that a crime has been committed. Wilkerson's charges are sufficient in themselves to require the Department of Justice to immediately open a criminal investigation of Vice President Cheney and Donald Rumsfeld. Such an investigation could take as its starting point Wilkerson's "audit trail," the statements of CIA agents and the CIA Inspector General, and extensive published evidence indicating torture and prisoner abuse by U.S. personnel around the world.

If I. Lewis "Scooter" Libby and other high government officials can be investigated for outing Valerie Plame, don't facts that "reasonably indicate" war crimes and crimes against humanity deserve equal time?

Bush administration officials have said over and over that they have acted within the law. If so, they have nothing to fear from an investigation and should encourage one to clear the air.

The United States is supposed to have "equal justice under law." Colonel Carranza has had his day in court. We as citizens -- and our prosecutors, judges, and elected representatives -- need to address the question: When will Vice President Cheney, Secretary Rumsfeld, and their collaborators get theirs?