Crimes in High Places

Despite President Bush's frequent claim that "we don't do torture," top officials of the US government this month admitted that waterboarding was used on at least three detainees. The White House reaction was to announce that, if needed, waterboarding would be used again.

Since crimes in high places have now been admitted, those responsible must be held accountable. There are only two ways to do this: prosecution or impeachment.

Most experts agree that waterboarding, which was used at least as early as the Spanish Inquisition, is torture. As such, it violates the US anti-torture law 18 USC Section 2340 (a) as well as US treaties. Although it bars torture overseas, it covers any US national who order, directs, or conspires with those who engage in it abroad, including, for example, a president or vice-president. Thus, all administration officials involved in the waterboarding, including President Bush, could be guilty of violating that law.

Given the recent admissions and the White House's refusal to condemn the practice, it is most likely that the president, the vice president and other high level officials authorized the waterboarding. At the very least this was not -- and is still not -- viewed by them as a "rogue" activity.

Notwithstanding those who deny that waterboarding is torture, no one can seriously dispute that waterboarding constitutes cruel and degrading treatment of detainees, a practice that was outlawed by the War Crimes Act of 1996. That act was designed to carry out US obligations under the Geneva Conventions and makes it a federal crime to violate certain provisions of the War Crimes Act.

It is indisputable that the president and then Attorney General Gonzales, as well as other members of the Bush administration, understood that "enhanced interrogation techniques," including waterboarding, could violate the Geneva Conventions and the War Crimes Act.

It was the fear of criminal prosecution that motivated at least in part the president's rejection of Geneva Convention applicability to Al Qaeda and Taliban detainees. The thinking was that if the Geneva Conventions didn't apply, then the War Crimes Act did not apply. But administration officials were still haunted by the possibility of criminal liability under the War Crimes Act for waterboarding and other mistreatment of detainees, so in the fall of 2006, just as it became clear that the Democrats were going to win control of the House, the Bush administration snuck through legislation retroactively nullifying the War Crimes Act.

That nullification can fortunately be overturned in the next administration, thereby making anyone who violated the original War Crimes Act, including, if the facts warrant it, the president and his team liable to prosecution.

But the fact that the administration approved and engaged in water boarding -- a practice that top officials knew at the time could violate US law -- calls for a response by Congress now.

There are two approaches. One is to ensure that the criminal law is enforced. But Mr. Mukasey, the new Attorney General, has refused to do this. His position is that the Justice Department cannot prosecute anyone if it advised that person that the conduct was legal. This position smacks of the Nuremberg defense -- "I was just following orders" -- and is untenable.

The February 2002 memo to the president from Mr. Gonzales shows that the rejection of Geneva was a ruse to allow mistreatment of detainees, and suggests that the president knew what he was doing, violated the Geneva Conventions and US criminal law, but was determined to proceed no matter what, trying the best he could to provide legal cover for his actions.

The president's objective was to circumvent the law. That is clear from the effort to nullify it retroactively, in essence giving himself and others pardons.

Congress should not sit by. The attorney general must be requested by Congress to commence an investigation of the president and the top team, picking a special prosecutor to do so. I doubt that this will happen. What these events show is that the special prosecutor law must be reenacted by Congress, to avoid a repetition of this spectacle.

Criminal investigation and prosecution must commence under the next administration.

Impeachment must commence. This is the second approach. For too long the Congress has taken impeachment off the table, but the time has come to put it back on. Since impeachment doesn't require violation of federal criminal law, it will not matter that the War Crimes Act has been retroactively nullified. Congress can impeach for the abuse of power inherent in the president's knowing and deliberate effort to violate the War Crimes Act. Similarly, Congress can determine that water boarding is torture and impeach the president for holding himself above the law with respect to the anti-torture act.

Failure to act creates a culture of impunity around presidential misconduct of the most repugnant kind. It is imperative that those like President Bush who put themselves above the law be held accountable. That is the essence of what a democracy, in the end, is all about: the rule of law.

Former Congresswoman Elizabeth Holtzman served on the House Judiciary Committee during Nixon's impeachment. She co-authored the 1973 special prosecutor statute, and co-wrote (with Cynthia L. Cooper) the 2006 book The Impeachment of George W. Bush.

Comments

[ChingarraSan]

Impeachmeant
Submitted by ChingarraSan on Thu, 04/19/2007 - 11:58pm.

Great article. I've been making endless comments about the congress' duty to impeach, when it is clear, that crimes are being committed by this criminal administration. If they just stand by and take no action against this crooked bunch, it's my opinion that they are in violation of the oath they took to uphold the constitution! I have contacted my representatives and told them exactly what I've said above, and so far, have not received a response on the subject I've contacted them about. The response I get is " Thank you for your concern about these important issues, and feel free to continue to complain! They simply refuse to address the fact that what I have implied is that they are in violation of their oath to uphold the constitution! So, my question is, don't any of them think what they are doing is wrong, or are they all in the pocket of the large corporations? Now is the time to take action against the crooks that are running this country into the ground! If The Bush administration were thrown out of office now, it would still take generations to recover from the damage they have already caused! We risk democracy if we allow these criminals to continue with their agenda!

[SamThornton]

Assuming there is a sufficient Democratic majority in both houses of Congress after this year's elections, two basic things need to be done:

1) Congress has the power to set the number of justices that sit on the Supreme Court. The Court itself has often complained that their work load has become burdensome and changes need to be made. The Congress should increase the number of Supreme Court Justices from the current 9 to 15.

2) In view of the many apparent violations of law well documented in the press during the current Bush Administration, Congress should pass legislation appointing and fully funding an Independent Counsel to investigate possible transgressions and refer cases for criminal prosecution, where appropriate.

[nowaterboardUSA]

There is a reason bush bought that compound in Paraguay - no extradition treaty with the US. If impeachment proceedings start and they can't obstruct them - like every other investigation into them - then they'll hop a plane to their Latin American paradise just like the nazis did after WW2.

[PierreLeClerke]

OPERATION RESTORE TRUST is coming. We The People recognize our solemn obligation under the Constitution to ABOLISH this government. If Impeachment proceeding have not begun by April 1st 2008, OPERATION RESTORE TRUST will direct Federal agents to immediately take into custody pending trail the entire leadership of this administration and to ABOLISH this government as is directed under the Constitution and call for a Constitutional Convention on April 19th, Patriots Day in the Great city of Philadelphia.
For the purpose of reaffirming the basic tenets of Our Constitution and the Restoration of the Rule of Law, and to set a date certain for new Federal elections for ALL Federal office holders. WE will include in the new Articles Law strictly banning Any Human Rights violations including TORTURE on any Human Being. We will forever ban any and all corporate donations of any kind to any person running for any public office and require all campaigns to be publicly funded only as well as requiring all Radio and Television networks to provide free and equal airtime to all qualifiing candidates. Any Campaign found to have made false or misleading statements in the media will be banned from the use of that media for the duration of the campaign. No Corporate lobbiest will be granted private access to any public official without a full video record of the entire meeting duly witnessed by an independent citizens advocate agent.
You have been given a sacred trust, and you have violated us. Now We the People will treat you like the greedy self serving Children our Forefathers feared most. TYRANTS!

[ConnieInCleveland]

ACCOUNTABILITY, ACCOUNTABILITY, ACCOUNTABILITY! America is in a sad state of affairs when statements like these are so true and so ignored. Mainstream media cares more about American Idol, Britney and Paris Hilton than US!

If America starts holding mainstream media and their sponsors accountable, they will do their jobs in holding our elected officials accountable.

[itmaybetoolate]

"Impeachment must commence...failure to act creates a culture of impunity around presidential misconduct of the most repugnant kind. It is imperative that those like President Bush who put themselves above the law be held accountable. That is the essence of what a democracy, in the end, is all about: the rule of law." Well said. This is the MOST important issue facing our country today. All else is fruit of the vine. And who has taken leadership on this? Clinton? NO. Obama? NO. And one of these two will be our candidate? Let's face it folks, bushie will get away with it. The one person who called for impeachment is gone and ridiculed to some degree (Kucinich) and the one person who would have pursued an investigation as president (Edwards) was ignored.

[independent1964]

Impeachment would be good but prosecution would be far better......We can't let MCcain appear moderate by supporting the impeachment proceedings. Once a democrat takes the office the appointment of a strong attorney General may lead to prosecution.

[Austintatious]

Not likely, and it's not just because the Dems don't understand how serious the problem is. It's far worse than that. It's because they've been, and stll are, right in the middle of it.

Too many of the Dems have been complicit in the crimes perpetrated by the government, up to their necks. Rockefeller, for example. They don't begin to want justice in these matters. That's exactly why we're being treated by the Reid/Pelosi Congress to hearings on steriods in sports and similar political smokescreens.

If you are looking for the Dems to apply real justice here, it just ain't going to happen. Regardless, you are all right to continue pressing for it.

[ljsfolly]

Impeachment would have been realy wonderful maybe two years ago when people were waking up to having been had and the truth about multiple things was hitting the front pages after the media had soft sold bush/cheney to the US the rest of the time. I fault the MSM for not having the guts to come forth with what they had on bush but they waited until the slow burn in the people reached them and said better reprt on what is really going on. Books, multiple books came out telling the truth about bushes administration but not all were willing to believe IF they read them at all. It's too late for impeachment but third world countries are bring fromer dictators and presidents etc to trial for crimes/misdeeds while they were in power so why cannot we? Because we have the Congress of "let's just move on from here". We need Democrat leaders in Congress willing to stand up for the very people who elected them. Until we do not one thing will be done for all that has happened. Bush has made sure with all his signing statements and agreements that his but is safe which is just part of the muck someone strong enough has to dig through, Hillary would be first to say it's done and let's move on because she also want s to keep hidden what has been done.

[dshwa]

It's never too late. If we want to regain our standing with the world, then we must prosecute or impeach. This isn't something like Iran-Contra we can just sweep under the rug after a few years and pretend it never happened.

[itmaybetoolate]

Yes, exactly. This cannot be swept under the carpet without doing real damage to our Constitutionally based government. But, I am afraid that, in the end, george bush will go unpunished.

[itmaybetoolate]

If Congress does not impeach, it is implicitly supporting the actions of a rogue president. Timing does not matter. Has the president acted in an unConstitutional manner? If the answer is yes, then he has to be impeached. It is the responsibility of the Congress. Look at it this way - if what george bush has done does not warrant impeachment, what in god's name does? After this, the threat of impeachment is meaningless. As much as I hate to say it, it is not in the interest of anyone who wants to be president to push impeachment.

[zjr909]

As always, when the topic is truly important, most of the comments are thought provoking and intelligently presented. I'm grateful to be able to encounter these kinds of comments. But I have to confess: I focus most on the comments of those like TheJibrellaMonsters - because, unfortunately, those are the comments that generally reflect the majority view (which is precisely why the country's in the mess it's in right now). I haven't seen a poll lately asking if torture is ok; but I'm willing to bet that if it's worded to make torture seem the only possible solution, the majority of Americans would give it the thumbs up. And thereby hangs the tale. If it's done to the people we've demonized, then it's ok with the people. Never mind that torture is always evil, under any possible scenario; and that the society sanctioning torture is always corrupt and immoral, no matter how many prayers are said in how many churches. So while I, too, would like to see impeachments within the executive and even the legislative branch, it still wouldn't get at the real source of the problem: the majority attitude toward our "enemies." Until that changes, the laws will never again be obeyed by those at the top. Because we the people will always turn a blind eye to any infractions we agree with.

[dshwa]

After WWII we executed several Japanese soldiers for using torture on American POWs. Guess what totrure method they used? Waterboarding.

[guntotinganglion]

The people who agree with, and sanction the use of torture, are one of the reasons there is law prohibiting torture. The only real problem is enforcement, not the law itself, or the people's attitude toward these Medieval torturers. Another serious problem is there are people who have sworn to protect and defend the Constitution, who lied. That would be virtually ALL of our elected representatives. They work for us, and their actions reflect strongly on US. We are the fourth house in this Constitutional form of government, and we are the truly responsible parties in all of this. If you believe in what is going on, be silent. If you do not, then speak up and make your voice heard. Silence is capitulation.

[Cautious]

So who is going to file the articles of impeachment?

[nellieh]

Congresswoman Holtzman your post is right on. How are these names for prosecution, Bush, Cheney, Rumsfeld, Gonzales, Bradbury, Yoo, Tenet, and anybody else who signed off on it? As for impeachment. Speaker Pelosi became an instant failure as the first female Speaker buy taking impeachment off the table. Congress is/was derelict in their duty to the country and Constitution by permitting criminal activities to happen without stopping them. Waterboarding is after the fact (so they tell us) but wiretapping is not. We have absulutely the most corrupt administration in the history of our country and it continues unabated because of the ineptitudes or complicit co-operation of the Democratic Congress. Unfortunately, Pelosi has set back any woman's possibility for higher office. They have caved in on almost every piece of legislation they have proposed that the MINORITY permitted them to put forward. How easy it was for them to forget how they were shut out and marginalized by the Republicans when they were in charge. In charge is unfamiliar to this Congress and they just don't know how to make it happen. First they have to know what "it" is.

[wcs55]

It's absolutely unbelievable what has happened to this country in 7.5 short years. You know Bush, Cheney, Wolfowitz, Pearle, et al... are high-fiving each other right now. Oil was $21.47 a barrel when Bush took office in 2001. The only recourse is impeachment. Bush and Cheney... I can see them now clinking the wine glasses (Bush's non-alcohol) and saluting each other for it is truly "Mission Accomplished" for them.

[nancytheragingliberal]

This is a great post. Thanks, but........The same words have been used often, alas, to no avail. Dear Nancy P. saying "impeachment if off of the table," tells me she is bought and paid for by the highest bidder. She is a total disappointment and a dismal failure, along with her pal H. Reid. Bush and Cheney should have been impeached long ago, but there they sit, above it all, while the general puplic has to tow the line in all aspects of their lives. I stand by a vote for Dennis K., a true Patriot, a man of sincere caring for the American people, and the only one who had the ba**s to file Articles of Impeachment against Sure-Shot, Halliburton Dick. The corporations hated Dennis K. b/c he spoke to their greed and demolishing the American people and the Rule of Law.
Can you picture a Dem. Administration pulling all of this nonsence and not having it on T.V. 24/7?

[HanFeiTzu]

Thank you Congresswoman Holtzman for noting the importance of following the law. However, you failed to make the case against those who are responsible for allowing this to continue; that being AIPAC-girl Pelosi (given that name by Pat Buchanan), with her "Impeachment is off-the-table!" comment, and empty-suited Reid who has done absolutely nothing correct.
So, if the Democratic Leadership is incapable of ensuring that the Constitution is followed, then why should we continue to support Democrats?
For me, with few exceptions like Senator Feingold and yourself, the Democratic Party does not deserve our support and should be dissolved immediately.
One further point, adherence to our Constitution is only part of the issue. Once those criminals are out-of-office they should be immediately "rendition ed" to The Hague and prosecuted to the full extent of International Law. Only then will this country once again claim its respected place in the global community.

[dshwa]

Can't send them to The Hague. We've never signed the ICCT treaty, so the court isn't recognized by America as legit. Of course, The ICCT could indite them anywas, but all that would do is prevent them from leaving the country to go anywhere the ICCT is recognized, like Kissinger.

[Brett Paatsch]

There is also the matter of the American Servicemembers' Protection Act or the Hague Invasion Act. http://en.wikipedia.org/wiki/American_Servicemembers'_Protection_Act

The stated purpose of which was "to protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not party".
It authorizes the President to use "all means necessary and appropriate to bring about the release of any [US or allied personnel] being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court".

I'd like to see both Barak Obama and Hillary Clinton asked if they would undertake now, before they become President, not to use the powers of the President to either pardon Bush administration members for war crimes or to exercise powers under the above Act to prevent other nations from taking legal action against them.

[itmaybetoolate]

Every member of congress who has not clearly, loudly, and continuously called for impeachment is guilty of violating her or his oath of office.

[Macready]

Excellent . . .thank you so much . . . your posts are always right to the point . . .

Congress must impeach . . . it has no option but to put impeachment on the agenda . . . the fact that it isn't already on the agenda is in total defiance of the Constiution and smacks of GOP DLC complicity.

[jsinclair]

I agree with the points Congresswoman Holtzman makes, too, (and appreciate her earlier book about the case for impeaching Bush).

But, the sad fact is that the majority of Congress has neither the will nor the courage to impeach Bush & Co.

Waterboarding is just another in a long list of crimes. Perhaps they will be indicted by the World Court after leaving office, but it is clear that no legal action will ever be taken against them in the U.S.

Ultimately, they will only have the negative judgement of historians--which, sadly, hardly seems enough.

[Sundialsvc4]

I submit that it is actually unlawful for Congress to put this fundamental law-enforcement duty "off the table." Not only is such a thing unconstitutional, it would be and has been disastrous for the Republic.

If a Grand Jury or an Attorney General turned a blind eye to the local crime-lord, we would say that there was more than one criminal in that courtroom ... we would say that the most evil of them were the ones wearing the black robes.

We would say that, because those law enforcement officers would be aiding and abetting a known (or probable) criminal enterprise ... with which they were, no doubt, involved ... by virtue of barring the criminal gang from any fear of prosecution.

It is apparent to one and all that the Congress now has hands just as blood-soaked as those of the President. It simply doesn't wash for them to say that they are, or have ever been, "vacillating" or "weak" or "pliant" or "divided" or "strong-armed by the President." Better words for them would be: "quislings," "traitors," and "accomplices."

The least thing they can do now, perhaps to save their own skins, is to actually impeach a large number of civil officers.

[Austintatious]

Congresswoman Holtzman seems to suggest that the obvious and necessary remedy to address the matter of government sponsored torture and other crimes is an "either-or" option- that is, either impeachment OR prosecution. Actually, it's both.

Those responsible, certainly including Bush and Cheney, should already have been impeached and prosecuted. Problem is, prosecution will not occur as long as the criminals in question remain in control of the government, and the Congress continues to approve their appointment of political hacks such as Attorney General Mukasey.

The other problem is that the Congress, including the large majority of Democrats, has either been complicit in the perpetration of the crimes in question or, at best, have enabled the same by their silence and failure to uphold the Constitution and laws of the United States - impeachable crimes in and of themselves. Senator Rockefeller is but one example.

It is clear that justice will not be done regarding these crimes as long as Bush and Cheney are in office; however, it is also doubtful the the Democrats will be any better, even should they win the White House and large majorities in Congress, in November.

This issue will be a significant test of the integrity of the Democratic Party, should it enjoy such a big win. While it is clear that the Republicans, quite literally, have no integrity or national conscience, it remains to be seen if the Democrats have sunk that low. My hope is that they have not, but my money says that they have. We shall see.