06/13/2009 05:12 am ET | Updated May 25, 2011

How Can You Not Have Bush, Cheney and Gonzales Prosecuted?

The roles of Bush, Cheney and Gonzales in the torture process was always less clear than the roles of the lawyers who justified it -- Jay Bybee, John Yoo and David Addington. No longer.

The question is no longer, should you, or can you, prosecute Bush, Cheney and Gonzales for authorizing torture. The question is, how can we say we live under a system of law and not have them prosecuted for conspiracy to commit war crimes.

It was only just a matter of time until the higher-ups would be specifically implicated. It was John Dean who, after a year of relative inaction in the Watergate probe, began describing his role in Watergate and began naming names. Now, the men and women in America who were carrying out Bush's orders are locating him in the chain of responsibility.

Bush, Cheney and Gonzales did not rely on vague or carefully couched memos. Gonzales -- acting at the direction of Cheney and with the acquiescence (if not direction) of Bush, was direct. Gonzales countermanded the direct orders of the FBI operatives in the field, as well as George Tenet. He did not write nuanced legal memorandums to get past the Geneva Conventions or the War Torture Act. He simply ignored it.

When a highly respected former Bureau agent, Ali Soufan, said stop using brutal interrogation techniques against Abu Zubaydah in 2002, because it is both torture and was counterproductive, Gonzales directed his man, James Mitchell, to continue. This was before the torture memos were circulated.

Zubaydah was waterboarded 83 times.

"We're the United States, we don't do this," Soufan said. Gonzales replied, do it, says Soufan.
Soufan wanted to arrest Mitchell, the man Gonzales sent in to oversee the torture. He could not.
Cheney, who directed Gonzales, tells us Bush knew all about it. In ordering these policies, Bush, Cheney and Gonzales are all guilty of conspiracy to commit war crimes.

It is becoming easier and easier to prove in a criminal court. Let a jury of 12 American jurors decide who is responsible.