Holding Bush Accountable

President Obama, on his first day in office, can make a number of
changes that will mark a clean break with the Bush presidency. He can,
and should, issue an executive order revoking any prior order that
permits detainee mistreatment by any government agency. He should begin
the process of closing Guantanamo, and he should submit to Congress a
bill to end the use of military commissions, at least as presently
constituted. Over the coming months he can pursue other reforms to
restore respect for the Constitution, such as revising the Patriot Act,
abolishing secret prisons and "extraordinary rendition," and ending
practices, like signing statements, that seek to undo laws.

While these steps are all crucial, however,
it is not enough merely to cease the abuses of power and apparent
criminality that marked the highest levels of George W. Bush's
administration. We cannot simply shrug off the constitutional and
criminal misbehavior of the administration, treat it as an aberration
and hope it won't happen again. The misbehavior was not an
aberration--aspects of it, particularly the idea that the president is
above the law, were present in Watergate and in the Iran/Contra
scandal. To fully restore the rule of law and prevent any repetition of
Bush's misconduct, the abuses of his administration must be directly
confronted. As Indiana University law professor Dawn Johnsen--recently
tapped by Obama to head his Office of Legal Counsel--wrote in Slate
last March, "We must avoid any temptation simply to move on. We must
instead be honest with ourselves and the world as we condemn our
nation's past transgressions and reject Bush's corruption of our
American ideals."

What we need to do is conceptually simple. We need to launch
investigations to get at the central unanswered questions of Bush's
abuse of power, commence criminal proceedings and undertake
institutional, statutory and constitutional reforms. Perhaps all these
things don't need to be done at once, but over time--not too much
time--they must take place. Otherwise, we establish a doctrine of
presidential impunity, which has no place in a country that cherishes
the rule of law or considers itself a democracy. Bush's claim that the
president enjoys virtually unlimited power as commander in chief at a
time of war--which Vice President Dick Cheney defiantly reasserted just
last month--brought us perilously close to military dictatorship.

As the former district attorney in Brooklyn, New York, I know the
price society pays for a doctrine of impunity. Failure to prosecute
trivializes and encourages the crimes. The same holds true of political
abuses--failure to hold violators accountable condones the abuse and
entrenches its acceptability, creating a climate in which it is likely
to be repeated. The doctrine of impunity suggests, too, that there is a
dual system of justice--one for the powerful and one for ordinary
Americans. Because the concept of equal justice under the law is the
foundation of democracy, impunity for high-level officials who abuse
power and commit crimes erodes our democracy.

An impeachment proceeding against President Bush would have been the
proper forum to expose the full scope of his abuses and to impose
punishment. That obviously didn't happen, but investigations and
prosecutions can still provide the vast civics lesson that an
impeachment process would have given our nation.

There is another important reason for not "moving on." On January 20,
Barack Obama will take an oath of office to uphold the Constitution,
which requires the president to "take care that the laws be faithfully
executed." Much as President Obama might like to avoid controversy
arising from investigations and prosecutions of high-level Bush
administration officials, he cannot let them get away with breaking the
law without violating his oath. His obligation to pursue justice in
these cases is all the more serious given his acknowledgment that
waterboarding is torture--which is a federal crime--and the vice
president's recent admission of his involvement in and approval of
"enhanced" interrogation techniques.

Moreover, under the Geneva Conventions and the Convention Against
Torture, our government is obliged to bring to justice those who have
violated the conventions. Although Bush smugly ignored his
constitutional duty to enforce treaty obligations and laws that punish
detainee mistreatment, Obama cannot follow the same lawless path.

Investigations

The Iraq War, the torture and mistreatment of detainees, and the
wiretapping and US Attorney scandals of the Bush administration merit
new and full investigations that could be carried out singly or
together and could be conducted by Congress or an outside commission.

The Iraq War has been a tragic mistake for America. More than 4,000
Americans have been killed, more than 30,000 wounded and the financial
cost is expected to exceed $1 trillion. The cost to Iraqis in lives and
destruction is much greater. This war was not just unnecessary; it was
based on false claims. We were told we were justified in striking at
Iraq because it posed the threat of weapons of mass destruction and
because Saddam Hussein was in cahoots with Al Qaeda, which attacked us
on 9/11. Those statements, as we now know, were blatantly untrue.

Despite several Congressional investigations, we never learned
whether President Bush knew that the justifications for the war were
untrue and whether he deliberately lied to drive the country into the
war.

There are many indications that he did know. The Downing Street memo
officially recorded a briefing given to British Prime Minister Tony
Blair in July 2002 by his top intelligence official, who had just
returned from meetings in Washington, eight months before the war
began. According to the memo, Blair was told that the United States had
already decided to remove Saddam and that the intelligence was going to
be "fixed" around the policy. At the first National Security Council
meeting in 2001, two years before the United States went to war,
Treasury Secretary Paul O'Neill was astonished to find that the
decision to invade Iraq had already been made--the question, he said,
was not whether but when. Finally, the Senate Intelligence Committee
not long ago found that most of the claims made for the need to go to
war were not borne out by information in the possession of US
intelligence agencies.

A 9/11 kind of commission or committees of Congress must commence an
investigation to get at the truth of the presidential deceptions
related to the war. Whether President Bush knowingly deceived us needs
to be fully explored and exposed; if he did, he will at the very least
have to carry that burden of disgrace permanently. Precisely because
other presidents lied about warmaking--think of Lyndon Johnson and the
Gulf of Tonkin resolution and Richard Nixon and the secret bombing of
Cambodia--we know that future presidents will be tempted to do the
same. Investigating and exposing the role of President Bush and his
team in the deceptions causing the Iraq War may discourage future
presidents from taking the same path.

Similarly, investigations need to be conducted into the torture and
mistreatment of detainees held by the US government. The numerous
investigations ordered by Defense Secretary Donald Rumsfeld in the wake
of the Abu Ghraib disclosures obfuscated the question of responsibility
at the highest level. They conveniently did not probe the role of the
president; vice president; Justice Department officials, including the
attorney general; or other cabinet secretaries. They also did not look
at the actions of the Central Intelligence Agency.

The mistreatment was recently confirmed by the Senate Armed Services
Committee, which in a bipartisan report found that it was initially
traceable to President Bush's removal of Geneva Convention protections
from members of Al Qaeda and the Taliban, and was a direct result of
actions taken by Rumsfeld.

Full inquiries into responsibility for torture and mistreatment,
however, need to be undertaken by a commission outside Congress, since
some members of the House and Senate appear to have been apprised by
the administration of the torture while it was going on and may have
approved it. Members of Congress might be reluctant to sit in judgment
of their colleagues, and in any case there would be a serious problem
of appearances if they did.

Detainee mistreatment and torture have inflamed anti-American
sentiment throughout the world, creating added risks to our soldiers
and to Americans everywhere. Indeed, Abu Ghraib and Guantanamo have
become rallying cries and recruitment tools for Al Qaeda. Revealing and
documenting the whole story of detainee mistreatment, including the
role of the CIA and the president and vice president, would go a long
way toward changing public opinion about America at home and abroad.

The Bush administration's wiretapping program must also be reviewed.
Although Congress has watered down the Foreign Intelligence
Surveillance Act (FISA), it is important to understand the nature and
scope of the intrusions into Americans' privacy under the program. As
much information as possible, limited only by what is absolutely
essential to protect national security, must be made public. For
example, we do not yet know whether journalists, lawyers, political
opponents and the like were subjected to wiretaps or other intrusions.

Investigations also need to be conducted into the president's role in
the US Attorney scandal and the role of his aides Karl Rove and Harriet
Miers and his Attorney General Alberto Gonzales. It appears that
certain US Attorneys were removed from office solely because they
failed to bring baseless prosecutions against Democrats in the 2006
election year, and that other US Attorneys were appointed to bring
baseless prosecutions. The misuse of our criminal justice system for
electoral ends is a grave abuse of power, and the facts behind the
scandal must be uncovered.

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.

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.