Prosecuting Bush and Cheney for Torture: No One Can Be Above the Law

A month before he takes office, it has become the conventional wisdom in our conventional media that Barack "No Drama" Obama will not seek or even allow any prosecution of Bush administration officials for crimes committed over the past eight years-not even for authorizing and promoting the illegal use of torture on captives of America's wars on Iraq, Afghanistan and "terror."

Take that pillar of conventional thinking, the New York Times. A lengthy December 18 editorial laid out a solid case that approval for torture had come from top Bush/Cheney administration officials, and then concluded that "A prosecutor should be appointed to consider criminal charges against top officials in the Pentagon and others involved in planning the abuse." But then the paper's editors went on after that to give Obama a pass, saying, "Given his other problems-and how far he has moved from the powerful stands he took on these issues early in the campaign-we do not hold out real hope Barack Obama, as president, will take such a politically fraught step." In the view of Times' conventional-thinking editors, it would appear that the American government cannot be expected to prosecute criminals and fight a recession at the same time.

There is no mention of the obvious point that if crimes have been committed-and in the case of the authorizing of torture, which is banned by both international treaties to which the US is a signatory, and by US law, which folded the torture bans into the US Criminal Code for good measure, they clearly have been-the president and his incoming attorney general have a sworn obligation to prosecute them. That's what "preserve, protect and defend the Constitution" means, after all.

A "politically fraught" step? That should apply to not prosecuting criminals, should it not?

Note here that for the Times, and for the rest of the conventional thinkers who have reduced corporate journalism to such thin gruel that no one bothers with it any more, "politically fraught" refers exclusively to the idea that the Right will supposedly be riled up at any effort to prosecute war criminals in the outgoing administration. If people on the Left, or even the center, large numbers of whom believe strongly that the current administration should be held accountable for its crimes, get upset because there is no effort to prosecute them, that doesn't count as "politically fraught."

A new torture report, just released by the current, only narrowly Democratic, Senate Armed Services Committee, has definitively laid the blame for the sickening campaign of torture of captives by American military personnel and CIA agents, on officials all the way up to former Defense Secretary Donald Rumsfeld, Joint Chief of Staff Richard Myers, Vice President Dick Cheney's chief of staff David Addington, White House legal counsel (and later attorney general) Alberto Gonzales, and others. It really traces the approval directly up to President Bush, noting that it was Bush's signing of an executive order on February 7 2002, exempting captives in the so-called (and loosely defined) "War" on Terror from protections of the Geneva Conventions, which authorized the military's and CIA's descent into rampant, brutal lawlessness.

Others, myself included (in my book The Case for Impeachment, co-authored with Stanford University law professor Barbara Olshansky, and published in 2006 by St. Martin's Press), have long argued that both President Bush and Vice President Cheney are guilty of war crimes, especially for their authorization, condoning, encouraging, protecting, and failure to halt and to punish the practice of torture by American forces under their control. But here we have a bi-partisan committee of Congress finally, belatedly, making the same case. How can the new incoming president and commander in chief not order a criminal investigation of all of those responsible for crimes that not only were grievous violations of US and international law, but that, by the admission of key American military leaders, led to practices at Guantanamo Bay and at Abu Ghraib which were "the first and second identifiable causes of US combat deaths in Iraq."

On its face, I would submit that if as president Obama blocks prosecution of Bush/Cheney administration war criminals, it will be the wounded American soldiers and their relatives, and the relatives of Americans who died in Iraq and Afghanistan at the hands of fighters in those countries who were recruited into battle by the images of the torture and abuse who will make his decision "politically fraught." (And let's not forget that failure to prosecute torture violations is itself a war crime-making Obama himself potentially culpable should he fail to act.)

I have spent the last two and a half years actively promoting the idea that President Bush and Vice President Cheney should be impeached for their crimes against the Constitution, their manifest abuses of power, and their actual statutory crimes, such as torture and lying to Congress. Thanks to the political cowardice of the Democratic majority in the House of Representatives, under the craven leadership of House Speaker Nancy Pelosi and the gutlessness of House Judiciary Chairman John Conyers, the impeachment that was so richly deserved did not happen. But my failed quest for impeachment does not mean that calls for criminal indictment for crimes committed should be equally quixotic.

It's one thing for a bunch of politicians in Congress to decide that impeachment would be "too divisive," or to decide that they "don't have the votes" to win an impeachment vote in the House or conviction in the Senate, and therefore to oppose even trying to make the case (I disagree with these arguments completely, and note that they could as easily have been made in 1973 or early 1974 with respect to Richard Nixon, in which case he never would have faced an impeachment hearing in the House or been run out of office for his crimes). But it's another thing entirely to argue, as the conventional media drones are arguing, and as President-Elect Obama has been saying, that there can be no prosecution of people in the Bush/Cheney administration for crimes committed during their two terms of office.

What kind of message is this sending to the world, and to the citizens of the United States? If you commit a crime and you are important enough, it's not prosecutable in America?

This is taking the "too big to fail" argument that is being used to justify the bailout of failed enterprises like AIG, Citicorp, JP Morgan/Chase, and soon GMC and Chrysler, and turning it into "too big to prosecute" in the case of politicians.

"No one is above the law" used to be a proud motto of the US legal system. Now we are about to have our first president who is a constitutional scholar, and he appears ready, with the backing of the conventional media, to change that motto to: "No one is above the law, except for presidents, vice presidents and their top staffs."

The right answer, of course, is simple. The new president and the Congress should appoint a special prosecutor and authorize him or her to determine if there have been crimes committed by the prior administration, and then, if such crimes are found to have occurred, to prosecute them to the fullest extent of the law. Once such a prosecutor is appointed, the White House and Congress should step aside and let justice take its course.

As for the media, they should stop giving the new president a pass. Instead of, like the Times, saying they "do not hold out real hope" of such a step being taken, they should, in editorials, be demanding that it be taken. Meanwhile, in their news pages, they should be hard at work digging out the evidence of those crimes, and of the damage done by them.