By Cynthia L. Cooper, an award-winning journalist and lawyer, and Elizabeth Holtzman, a lawyer, former prosecutor and former member of Congress who served on the House committee that investigated Watergate.
When President George W. Bush and his team left office, mounds of misdeeds were left to fester. Some of their transgressions in office were so shocking – lying to Congress in order to embroil the nation in war and occupation, illegally wiretapping Americans without warrants, authorizing torture that had been outlawed by U.S. and international law – that he and Vice President Cheney probably should have been impeached and removed from office.
Instead, they completed their terms and sped away. Even though Bush publicly announced in his 2010 memoir that he had personally authorized waterboarding, a recognized form of torture -- “Damn right,” he is quoted as saying – hardly a peep was heard about seeking accountability. But how can that be? Key to preserving our democracy is the concept that no person is above the law.
In order to ignite a national conversation on the topic, we set out to show how and why the president and vice president should be held accountable – especially, how they can be prosecuted. That meant looking at the available evidence, investigating precisely what laws are implicated and determining, as best as possible, whether a prima facie case could be made. We found enough to make a courageous prosecutor sit up and take notice, although the statute of limitations is ticking in some areas. We found clear problems under laws related to the conspiracy to deceive Congress, foreign intelligence surveillance and U.S. anti-torture laws – each of which needs prosecutorial attention.
Along the way, we found something else disturbing, too: a repeated pattern by which Bush and Cheney took extraordinary efforts to protect themselves from the sting of the law. In Cheating Justice: How Bush and Cheney Attacked the Rule of Law, Plotted to Avoid Prosecution – And What We Can Do About It, we look at both: how the ex-president and vice-president can be held personally accountable, but, also, how they tried to manipulate the system from inside to keep themselves from being held to account.
Perhaps the most startling example of their extraordinary actions was the gutting of the War Crimes Act of 1996. This law was a healthy, robust and muscular law when President Bush took office. It had a proud history -- introduced in Congress by a Republican from North Carolina, passed by a bipartisan majority, signed by a Democratic president. The law implemented the Geneva Conventions for the U.S. and prohibited U.S. personnel from torturing detainees, and banned degrading treatment, cruelty, acts of humiliation and outrages against personal dignity.
To understand how far the president and vice president strayed from the War Crimes Act means facing what happened to some detainees. For example, at Guantanamo, Mohammed al Qahtani, a Saudi, was detained under blinding continuous light and extreme isolation, interrogated 20 hours a day, threatened by an aggressive dog, led around on all fours with a leash, exposed to life-threatening cold temperatures, subjected to beatings, forced nudity, forced enemas – and more. Other “approved” techniques included locking a detainee in a closed box and dropping in an insect. The pictures that eventually emerged from Abu Ghraib were only a sliver of the story.
The evidence shows that the president and vice president authorized and personally approved a scheme of cruel and inhuman treatment of detainees. But when the 2006 Supreme Court decision in Hamdan v. Rumsfeld said that the Geneva Conventions could not be summarily erased, Bush and Cheney knew that they might be held criminally liable under the War Crimes Act. They went into high gear to protect themselves, slipping a series of loopholes into another law, the Military Commissions Act of 2006, under the deceptive sub-heading of “implementation of treaty obligations.”
These changes shredded the War Crimes Act. Conduct that was previously illegal was suddenly made legal. For example, crimes of “cruel and inhuman treatment” were eliminated from the law in an apparent effort to legalize beatings, sensory deprivation, and the like. Even more astonishing, the law was made retroactive to 1997 -- something that may be unprecedented in U.S. history.
These examples of legal hocus-pocus are windows into the extent of the Bush efforts to create buffers of personal protection from the law. But, even in this area, other laws may still come into play, especially the U.S. anti-torture law and international human rights protections.
The actions of Bush and Cheney sully our democratic heritage and stain our constitutional system. If they are allowed to “get away with it,” nothing will be able to stop any future president or high official from similarly trampling on our rights and violating other criminal laws. It’s not too late, and people of conscience can make a case, knowing that the country as a whole will suffer if Bush and Cheney remain uninvestigated, unprosecuted and unaccountable.