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.