What to Do with G.W. Bush?

No Accountability

Yet, the panel demanded no meaningful accountability from Bush and his top aides, as former Ambassador Pickering made clear in a Washington Post op-ed on Friday.

In underscoring the report's findings, Pickering lamented how the Bush administration's use of torture had imperiled efforts to persuade other countries not to resort to cruel and inhuman treatment of prisoners. "Democracy and torture cannot peacefully coexist in the same body politic," Pickering wrote.

He proposed several steps "to mitigate the damage and set this country on a better course." This list included finally confronting the harsh truth about torture; releasing relevant evidence that the Obama administration is still keeping secret; enacting new legislation to close "loopholes" that were exploited to justify torture; and insisting on verifiable protections of prisoners transferred to other countries (rather than relying on "diplomatic assurances").

However, neither the report nor Pickering's op-ed addressed the significant point that laws against torture and mistreatment of prisoners already existed and that Bush and his team simply had ignored or evaded them. If Bush and Yoo could concoct an excuse giving the President the "plenary" power to do whatever he wants in wartime, why couldn't some future President and legal adviser do the same?

What good does it do to tighten "loopholes" if a President and his aides can flout the law and escape accountability? The only rational (and legal) response to Bush's use of torture is to arrest him and his key advisers and put them on trial.

Yet, in this case, the rational and legal remedy is considered unthinkable. If President Obama's Justice Department were to move against Bush and other ex-officials, the Washington Establishment -- from the Republican Party to the mainstream news media to much of the Democratic Party -- would react in apoplexy and outrage.

There would be fears about Washington's intense partisanship growing even worse. There would be warnings about the terrible precedent being set that could mean that each time the White House changes hands the new administration would then "go after" the former occupants. There would howls about the United States taking on the appearance of a "banana republic."

However, there also are profound dangers for a democratic Republic when it doesn't hold public officials accountable for serious crimes, like torture and aggressive war. Indeed, one could argue that such a country is no longer a democratic Republic, if one person can operate with complete impunity amid declarations of "plenary powers" -- which is what the Bush administration claimed in its memos justifying torture.

The report from the Constitution Project can declare that torture is incompatible with democracy, but it is equally true that if the President can torture anyone he chooses and then walk away -- free to attend baseball games, celebrate his presidential library and pose for the cover of "Parade" magazine -- then you are not living in a real democracy.