This article is unique. Ordinarily, when I sit down to pen an article, I voice a very strong opinion on an issue that is of concern to many. The following will be different in that respect. The issue in this case is: Should the Obama administration prosecute members of the Bush administration? On this issue I am completely ambivalent. My equivocation is based on what day it is, or even what time it is, or, perhaps, even the position of the moon, stars and planets in the universe.
The ultimate goal of this article is to present the varied issues involved in the aforementioned query. That, again, makes the article unique. There are writers who proclaim in no uncertain terms that the prosecution should proceed for the sake of our country. Then, there are writers who proclaim in no uncertain terms that the prosecution should not proceed for the sake of our country. Of course, neither view presents the downside of the course they recommend. This article will, leaving it for the readers to decide, not the writer.
Recently, I read a very interesting article by Marjorie Cohn, who is president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law. Cohn first described how Cheney publicly confessed to ordering war crimes in an ABC News interview. Cheney replied when asked about water-boarding, "I was aware of the program, certainly, and involved in helping get the process cleared." She then disclosed, "CIA Director Michael Hayden confirmed that the agency water-boarded three al-Qaeda suspects in 2002 and 2003," and that U.S. courts "have long held that water-boarding ... constitutes torture." The War Crimes Act defines torture as a war crime punishable by life imprisonment, possibly even the death penalty if the victim dies. Cohn then writes two highly significant paragraphs.
Why is Cheney so sanguine about admitting he is a war criminal?
Because he's confident that either President Bush will preemptively
pardon him or President-elect Obama won't prosecute him.
Both of those courses of action would be illegal.
Now that got my attention.
On February 7, 2002, Bush signed a memo erroneously stating that the Geneva Conventions, which forbade torture, did not apply to al-Qaeda and the Taliban. But the Supreme Court made clear that Geneva protects all prisoners. Bush also admitted that he approved of high-level meetings where water-boarding was authorized by Cheney, Condoleezza Rice, John Ashcroft, Colin Powell, Donald Rumsfeld and George Tenet. That is all we need, right? Obama should immediately after taking office appoint an independent prosecutor or a highly empowered commission to look into the matter.
Cohn also points out that the President cannot " immunize himself or his subordinates for committing crimes that he himself authorized," and that the "Constitution will require President Obama to faithfully execute the laws. That means prosecuting lawbreakers." So, the way is clear, investigate and, based on findings, possibly prosecute.
But, hold on a minute, prosecute who? Bush and Cheney are obvious candidates, but what about Rice, Ashcroft, Powell, Rumsfeld, and Tenet. The Nuremberg Trials that convicted Nazis shortly after World War Two established that following orders in the commission of a war crime was not a sufficient defense. Also, according to Cheney, many prominent members of Congress were kept informed about the processes involved in the War on Terror, including aggressive interrogation techniques. Put a different way, accountability could become a real can of worms and could involve members of Obama's proposed cabinet, Robert Gates comes to mind. Bear in mind that each accused would have the best defense money could buy. The process could consume the Obama administration. I will get back to that.
Among many, including myself, the charges against Bush officials requires a revision of thought. Following the Democratic takeover of the House in Jan. 2007, many, including myself, urged the House to impeach Bush and/or Cheney for war crimes, to wit: An illegal invasion of Iraq based entirely on lies and deceptions. The invasion violated the U.N. Charter and the Geneva Conventions, both treaties we have signed onto, thus the law of the land, and thus an illegal war by any measure. The war in Iraq has now caused the deaths of thousands upon thousands, mostly Iraqi civilians, also including nearly 4,300 American troops and approximately 30,000 wounded. At the time torture was merely an ancillary issue to the somewhat larger issue. Unfortunately, according to House chair, Nancy Pelosi, the House had better things to do than restore the American Constitution and global respect for our great country, and impeachment never got off the ground.
Today, torture is the pre-eminent issue and the war in Iraq has become ancillary. To some, that requires a gigantic shift in emphasis. Perhaps, that is because a torture policy instigated by our country's leaders is a charge upon which we can grab onto, while a mistaken war is a bit nebulous and bit more hard to prove in a court of law.
Whatever the reason, the movement to prosecute members of the Bush administration revolves now around its torture policy.
Following the debacle known as the Bush administration, it is essential that the Constitution be restored to its past eminence. Eric Holder, attorney general designate, seems to be going in the right direction ... or not. He has stated, "Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the procedures that violate both international law and the United States Constitution." On the other hand, with the exception of the phrase concerning torture (albeit certain members of Congress were aware of the practice) Congress was complicit through the passage of such laws as the Military Commission Act, the Defense Authorization Act of 2006, the National Defense Authorization Act for Fiscal Year 2007, and the restructuring of FISA that made electronic surveillance of Americans more compliant with Bush administration's objectives.
With the exception of torture such laws gave Congressional approval for practices by Bush that were embraced by Holder in his grievances against same. You see what I mean? In one paragraph I just contradicted myself.
Since it would be unwise to investigate nearly every member of Congress sitting at the time, we must focus on torture policies and eliminate the other charges, including charges related to the illegal war in Iraq. The reader will recall that in Oct. 2002 Congress legitimized that war by complying with the War Powers Resolution of 1973. The problem with that course of action (torture related charges only) is that it does not address the rehabilitation of our Constitution.
Indeed, Obama has said very little about any investigation involving members of the Bush administration. Moreover, he has been remiss in mentioning the restoration of habeas corpus and the due process of law, hallmarks of our Constitution. He also has not addressed the removal of the expanded powers of the executive branch, case in point, the abundant use of signing statements. In these statements Bush declared that he has the power to set aside the laws he just signed when they conflict with his interpretation of the Constitution.
Thus, the imperial Bush put himself above the law. The point being, by focusing our attention on the easier charges related to torture policies, we are ignoring the real issues brought on by Bush, Cheney, and others. Many have a problem with that.
Nevertheless, despite the drawbacks there has to be some real accountability concerning the illegal policies of Bush and Cheney. While we would like to have the whole loaf, part of a loaf is better than no loaf at all.
Besides, the Constitution requires that the President as the chief law enforcement officer in the realm must prosecute evil doers whether they be a former President and Vice-President or a drug peddler. The law does not distinguish between job positions of an alleged criminal. Also, we cannot have two Presidents in a row who violate the Constitution because the document is inconvenient.
On the other hand, a vast majority of Americans want to say good riddance to the Bush administration, some adding, finally. To many, reliving the Bush era for the next several months, possibly even years, would be a scenario from hell.
Conversely, not unlike Obama, should the American people and its representatives abrogate the Constitution merely because it is inconvenient? Readers will note contradictions abound in this discourse. It is the promised nature of the article.
Talking about inconvenience, this issue could not have come at a worse time. Obama has stated that he will "promptly review" actions by Bush officials. "If crimes have been committed, they should be investigated." Then he adds ominously, "I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we've got too many problems we've got to solve." That is an understatement, two wars in far off lands, global warming, and a broken economy that has not hit bottom yet. Obama is going to need Republicans to help solve these problems.
Two questions need to be asked. If Obama appoints a special prosecutor or a commission to investigate Bush and Cheney, what will happen to his promised and sadly needed bipartisan governance? As Republican members are gazing at a $800B stimulus package for the economy, will their vote be affected by a Democratic investigation that searches for criminal intent committed by a former Republican President and Vice-President?
Since Americans are not being rounded up en masse and sent off to detention centers, and many of the excesses of the Bush regime have been halted, perhaps it is prudent to hold off on Constitutional issues right now and await a more opportune time. After all, Lincoln suspended habeas corpus during the Civil War, and Roosevelt wrongfully incarcerated thousands of Japanese Americans during World War Two. Neither felt the wrath of American jurisprudence.
Around and around I go. I curse Bush and his cronies for this multi-faceted paradox.
There is nothing more vital to the United States than the United States Constitution and observance of it, from President to pauper.
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