Americans have been facing a number of momentous deadlines, including the expiration of the Bush tax cuts and the “sequester” of $1 trillion from federal programs. But another critical deadline is fast approaching without attracting much notice. Statutes of limitations applicable to possible crimes committed by former President George W. Bush and his top aides, with respect to wiretapping of Americans without court approval and to fraud in launching and continuing the Iraq War, may expire in early 2014, less than a year from now.
President Bush has publicly admitted to authorizing wiretaps of Americans on more than thirty separate occasions without a court order, an apparent violation of the Foreign Intelligence Surveillance Act (FISA). In justification, Bush claimed legal advice exempted him as commander-in-chief from obeying FISA. Normally, a lawyer’s advice is not a defense to prosecution, particularly when the client shapes the advice. Here, the White House worked closely with Justice Department lawyer John Yoo on the legal opinion and blocked standard Justice Department review, even though the opinion was seriously flawed according to Yoo’s successors. The opinion bears the hallmarks of a handy stay-out-of-jail card, instead of a serious independent analysis prepared and relied upon in good faith.
Because secrecy still surrounds the Bush wiretaps, we don’t know the dates on which they may have ended and therefore cannot calculate exactly when the five-year statute of limitations expires. Assuming that the warrantless wiretapping ended when Bush left office on January 20, 2009, the statute would run out on January 20, 2014.
President Bush and his team may have also violated the Conspiracy to Defraud the United States statute, which was used to prosecute top officials in the Watergate and Iran/Contra scandals. Together with others in his administration, he made many misstatements to Congress about the Iraq War. In one noteworthy example, just before the invasion, he notified Congress that the invasion met conditions it had set for an attack, including that it was aimed at persons or nations that “planned” or “aided” the 9/11 attacks. But neither Saddam Hussein nor Iraq planned or aided the attacks of 9/11.
The five-year statute of limitations for defrauding the US started running the day President Bush left office, because the Iraq War was undertaken not just to remove Saddam Hussein and install a new government but also, as the former president explained, to secure “victory” and create a “stable” Iraq, an effort that lasted through the end of Bush’s second term. That means the statue of limitations will expire on January 20, 2014.
Since no prosecutions can be brought after the statutes run out, unless investigations are started soon, any crimes that did occur will go unprosecuted and unpunished, deeply entrenching the principle of impunity for top officials. This would be shameful for our country and strike at the heart of the rule of law
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After carefully reviewing the facts and law, a fair-minded prosecutor may decide that no prosecution of President Bush and his team is justified. As a former prosecutor, I know that there is a big difference between an apparent violation of a statute and a prosecutable case. I also know, however, that the failure to investigate apparent violations of law because of the high positions of those involved undermines our democracy. There cannot be two standards of justice in America, one for the powerful and another for the rest of us.
Nothing would corrode Americans’ respect for the rule of law more than enshrining a perception of impunity for top government officials. Nothing would encourage future criminality by presidents more than a belief that they are above the law. That is why it is incumbent upon the attorney general to appoint a well-regarded, independent prosecutor promptly, so that appropriate investigations can be completed in the time remaining.
President Bush and Vice President Cheney may also be criminally culpable for waterboarding and other forms of torture. This should also be investigated now, even though there is no statute of limitations for waterboarding and other life-threatening forms of torture—those responsible may be prosecuted as long as they live. Both President Bush and Vice President Cheney have publicly admitted their involvement in waterboarding detainees abroad. The federal anti-torture statute makes it an apparent crime to have done so. Attorney General Holder’s previous exoneration of CIA agents relying on the Justice Department memos regarding torture should not apply to President Bush and Vice President Cheney, because of their role in producing the memos.
The attorney general does not need Congressional approval to appoint a special prosecutor. Nor can political opponents prevent it. President Obama, however, has said that he wants to look forward and not back, and, given the enormous hostility of the congressional Republicans to his existing agenda, it is understandable his attorney general might want to avoid the partisan animosity appointing a special prosecutor would generate.
Despite the political consequences, it is hard to justify letting these statutes expire without conducting any investigation. The president’s oath of office requires him to take care that the laws are faithfully executed, arguably leaving him little political discretion on a subject of this weight and importance. Moreover, justice requires an impartial investigation, not a particular outcome, so the appointment of a special prosecutor is not a partisan endeavor. The investigation may not lead to prosecution, and in any case Obama has the power to pardon Bush as Ford pardoned Nixon if he feels prosecution is unjust.
But failing to act at all, not even to investigate the ample indications of possible crimes, sends a toxic message that a president is above the law. Letting the clock run out on investigating Bush administration misdeeds is an omission which could have disastrous consequences for the rule of law and an unpredictable effect on President Obama’s own place in history.