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

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By Dave Lindorff

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.”

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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.”

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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 that argument completely, and note that it 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.

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“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.

____________________
DAVE LINDORFF is a Philadelphia-based journalist. His latest book
is “The Case for Impeachment” (St. Martin’s Press, 2006 and now
available in paperback edition). His work is available at www.thiscantbehappening.net

 

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Dave Lindorff is a founding member of the collectively-owned, journalist-run online newspaper www.thiscantbehappening.net. He is a columnist for Counterpunch, is author of several recent books ("This Can't Be Happening! Resisting the (more...)
 

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