As Congress and the Obama Administration start to clean the mess left by Bush, Cheney, and their respective minions, Washington's highest priorities will include restoring the Rule of Law. A fundamental bedrock of modern democracy, it has withered under a multi-faceted assault by the White House entailing executive secrecy, self-aggrandizement, cronyism, corruption, and violations of various statutory, constitutional, and international legal obligations.
To repudiate the Bush legacy and restore fundamental American values, few steps would cover as much ground as ending surveillance, detention and torture. Obama's impending inauguration offers hope for progress on all three fronts, but observers have overlooked how enforcing executive accountability would support these concrete policy changes. Leaving former officials unaccountable could lead to even worse problems taking their place.
In the face of Washington's reluctance to deepen partisan divisions, or implicate leaders of both parties who ultimately share responsibility for the Administration's worst abuses, a rising chorus -- including Glenn Greenwald, Jonathan Turley, the New York Times, and now even conservative voices like that of former Nixon staffer John Dean -- has demanded that senior Bush Administration officials face prosecution for torture-related war crimes. Demands for executive accountability have grown bolder in the wake of recent revelations that Cheney, Rumsfeld, and their top aides personally approved the use of torture.
Prosecuting the officials responsible for failed, illegal and unconstitutional policies of torture, detention and surveillance would not simply vent partisan rage, or distract from Congress' pressing forward-looking work. To the contrary, executive accountability is crucial to enable a meaningful response to (rather than mere compromises on) our nation's most urgent needs.
Surveillance: Up in the Air
The first of the Bush Administration's secret domestic spying programs was exposed in 2005 by the New York Times. Dubbed the "Terrorist Surveillance Program" (TSP) to help placate a rightly skeptical public, it was ruled unconstitutional by one federal judge and nearly instigated a mass exodus from the White House by officials concerned with the program's systematic violation of fundamental rights.
After years of heated controversy over the TSP, congressional moderates caved to the Bush Administration's demands this summer and passed a new FISA bill, which retroactively authorized the TSP and re-wrote prior laws to accommodate the program's violations. Moderates cited unsupported national security concerns as a reason to disregard the Constitution, accepted continued executive secrecy even in the context of blatant executive lawlessness, and subsidized corporate criminals through blanket legal immunity.
President-Elect Obama bears some responsibility for the FISA fiasco of 2008. As a Senator, he promised to filibuster the bill, but ultimately voted for it during the presidential campaign. As a leading presidential candidate at the time, he enjoyed a unique opportunity to reframe the debate over the program, which he (understandably) resigned to avoid inviting criticism for appearing "weak" on national security.
Even so, Obama's inauguration offers hope: while he failed to defend civil liberties as a Senator, he might yet do so as a President. Like prosecutors wielding discretion over whether to file criminal charges in any given case, the President holds the authority to unilaterally curtail the TSP, as well as Bush & Cheney's other secret surveillance programs.
What sets surveillance apart from torture and detention is the sheer breadth of its assault on the American people: whereas illegal detention has affected hundreds of individuals, and torture some unknown (probably smaller) number, surveillance offends the rights of hundreds of millions of Americans -- including even U.S. service members spied upon in their most private moments.
If we can't attain a national consensus against secret surveillance trampling the rights of literally every American, what hope exists of a progressive consensus emerging on torture or detention?
Detention: A consensus against Gitmo...but for what, exactly?
Unlike surveillance, the detention debate has witnessed a fundamental shift in the center. Corporate law firms across the country stepped in to defend detainees in federal courts and the Bush Administration's puppet tribunals: military commissions initially rejected by the Supreme Court, before Congress again later ratified the Administration's excesses through the Military Commissions Act of 2006. Enduring smears by the Pentagon, lawyers representing detainees even found support from their corporate clients, which recognized the fundamental values at stake and firmly supported their work. Obama's victory in November further reflects a national consensus to close Guantanamo Bay and restore habeas corpus.
But what comes in Gitmo's wake? How to close the facility could prove even more important than whether to close it: Gitmo was a gulag for less than 800 people at its peak, whereas proposals for alternatives, such as so-called "national security courts" within the U.S., would eviscerate the rights of millions.
First and foremost, federal courts created under Article III of the Constitution are fully equipped to adjudicate criminal cases against defendants previously held as enemy combatants. In Article III courts, well-trained judges apply established rules of procedure within a constitutional framework lending legitimacy to their judgments.
In sharp contrast, creating specialized "courts" for detainees would further undermine the Rule of Law along several dimensions. By deviating from the system of rules previously established by Article III, they would violate law (which relies on the consistent application across contexts of transparent rules known in advance) by definition.
In addition, accepting the Bushian premise that Article III courts are inadequate would place the Obama Administration in the position of cementing a noxious precedent. If preventive detention becomes the "new normal," what manner of abuse will Obama's eventual successor concoct? And in the meantime, what norms would we set -- and what kind of change would Obama signal -- to the onlooking international community?
One of the main reasons their detractors say Article III courts are inadequate to hear cases involving enemy combatants is because so much of the evidence against detainees was coerced through torture. Unlike military commissions, which allow torture-induced evidence, Article III courts are bound by the Constitution, including the 5th and 8th Amendments, and (at least theoretically) international agreements such as the Geneva Conventions -- all of which prohibit torture. According to conservative apologists, these constraints render Article III courts ill-equipped to adjudicate the cases of military detainees.
But why, exactly, is their respect for rights a reason to doubt Article III courts? Torture-induced evidence will be inadmissible, but it should be -- that's why we banned it in the first place. Our nation chose long ago not to follow the Spanish Inquisition's example.
In addition, Article III courts could adequately consider any further potential evidence (including classified information) that prosecutors might offer to support the detention of a particular individual. Of course, the Administration calls the two hundred or so detainees who remain "hardcore" terrorists. But Donald Rumsfeld claimed six years ago that Gitmo housed the "worst of the worst," which we now know to be patently false.
Torture: The crux of the debate
As with detention, moderates have routed neo-conservatives and won the national "debate" about torture. Obama has vowed to end torture, and the controversy has shifted from whether to allow "enhanced interrogation techniques" to whether those responsible for them will ever face justice.
But while the neo-conservative torture policy has been decisively rejected, its proponents have not yet been held accountable, nor even fully debriefed by investigators or Congress. Attorney General Mukasey won confirmation last year to the nation's highest law enforcement position despite refusing to repudiate torture. And even after gaining a majority in the House and Senate in 2006, and witnessing public opinion polls favoring impeachment of Bush and Cheney, Democrats neglected executive accountability and instead left those responsible for torture in office.
It would be bad enough to circumvent the Constitution by creating some lesser, contrived "judicial" process for detainees. Trying to justify such contortions as necessary to accommodate the excesses of torturers adds insult to injury. Rather than presuming detainees to be guilty on the basis of torture, we should allow them a chance to defend themselves -- and we should prosecute their torturers, as well as their elected civilian commanders.
That commitment to the Rule of Law would not only restore legitimacy to America's struggle against violent extremism, but also drastically shift the discussion of related policies. Put simply, whether Guantanamo Bay is replaced by an even worse alternative could turn on whether torturers, or detainees, face justice first.
Cheney & his minions
Vice President Cheney, in particular, should face criminal liability imposed not only through a judicial process, but also through legislative impeachment by the next session of Congress. His charges should include not only the war crime of ordering torture, but also outright treason.
At the very least, Cheney recently disclosed a decision to personally authorize torture, and the Senate recently exposed Rumsfeld's crucial role. Both officials clearly violated the Constitution and the 8th Amendment, as well as longstanding international human rights norms that our country was once proud to have pioneered.
Among those norms was the principle -- which we advocated and secured at the Nuremburg trials 60 years ago -- that liability for human rights abuses and war crimes stretches up and down the chain of command. Accordingly, enablers such as David Addington (who reportedly drafted the February 2002 memo declaring the Geneva Conventions inapplicable to enemy combatants) and William Haynes (who stopped a review by the Joint Chiefs of Staff sought by the Navy) should also face charges for crimes that they helped their bosses commit.
And because the Vice President wields influence only under the President's auspices, President Bush should face many of the same charges. Prosecuting the President grows even more imperative should he attempt (as he did with "Scooter" Libby) to pardon his subordinates for offenses they committed together. Pardons that impede justice and accountability are bad enough; self-serving pardons preclude transparency by closing lines of investigative inquiry and inflict further public harm beyond the underlying offense.
Approving torture is not merely a war crime; it (and a host of other public high crimes by Cheney and his junta) may also have constituted outright treason.
Strong policy arguments counsel against torture. For instance, the treatment of U.S. soldiers and contractors turns on how others expect us to handle those we capture on the battlefield. Four years ago, the gruesome execution of four Blackwater mercenaries in Falluja instigated one of the conflict's bloodiest episodes, when U.S. forces essentially demolished an entire civilian city. Within a month, the now-infamous photos emerged from Abu Ghraib, confirming previous suspicions of abuse by U.S. forces.
From this perspective, U.S. torture and arbitrary detention policies helped terrorists by driving recruits into their arms, undermining U.S. national security and threatening the lives of American soldiers.
Beyond personally authorizing torture, Cheney, in particular, also betrayed the public trust and the integrity of his office. First, the Vice President has never directly answered accusations that he contrived public policies to enrich his former colleagues. For instance, Cheney's Energy Task Force brazenly sacrificed our country's interests to the whims of oil, gas and coal executives. Cheney's meetings with industry leaders also offended transparency and represented an early step toward his longstanding agenda to centralize power in the White House.
Cheney's personal relationship with Justice Antonin Scalia, who helped hide the scheme from public scrutiny in a ruling supporting his friend, further mocked the Rule of Law. And the energy policy ermerging from Cheney's Task Force ultimately played a key role in the disastrous decision to invade Iraq (as well as this summer's spike in energy prices).
Separately, the agenda to "downsize the military" that Cheney and Rumsfeld shared was code for granting massive public subsidies to contractors like Halliburton, often through no-bid contracts for performing traditionally military functions. Patronage for an official's former business appears especially galling in the context of war - especially an unnecessary won consuming $3 trillion, and the lives of over 4,000 U.S. soldiers, and anywhere between 90,000 and over half a million civilians. While scamming taxpayers, contractors like those rewarded by Cheney's largesse also enjoyed immunity from prosecution for abuses ranging from fraud to murder & rape.
Cheney has already faced criminal investigation for exposing an undercover CIA agent in retaliation for her husband's criticism of Cheney's lies encouraging war. Cheney's Chief of Staff was criminally convicted of lying and obstructing that investigation. In the midst of that investigation, Cheney pressured the Attorney General to authorize the TSP despite fierce internal objections from within the Justice Department over its legality. Later, he blacklisted conscientious officials who opposed his agenda, and shut down another investigation by denying security clearances to investigators probing the role of White House lawyers in approving torture.
Knowing what we do about the Vice President, his unapologetic maintenance of secrecy surrounding his public acts, his abuses of office, and the sheer audacity of his agenda, why has he not faced further questions whose answers remain mysterious?
Cheney was present every time the President was questioned by the 9-11 Commission, whose explanation of that tragic day's events has never convinced millions of Americans committed to what they call the "9-11 Truth" movement. If 9-11 remains clouded by lingering conspiracy theories (however attenuated), why not examine Dick Cheney's potential links to them?
We know that Cheney supported an analysis that longstanding conservative aims, like those embedded in the PATRIOT Act, would require a tragedy along the lines of Pearl Harbor in order to become politically viable. Countless garden-variety prosecutions have started from more attenuated observations of a suspect's circumstantial motive.
And what of Paul Wellstone? Does the bizarre and untimely death of the Senate's most outspoken liberal on the eve of an illegal and globally controversial war not suggest some scrutiny of that war's principal architect? Few potential criminal suspects have clearer motives or means, and while the extent of Cheney's potential "opportunity" remains opaque, it would be a fitting subject for closer investigation.
On the one hand, executive accountability for torture (or potential involvement in a national tragedy) holds no formal link to policies on either detention or surveillance. But as Congress and the Obama Administration evaluate their respective alternatives going forward, the political climate surrounding their inquiry would shift dramatically were Bush Administration officials to confront criminal charges.
If Cheney and others face justice for their roles in approving torture, or treason charges for their various assaults on the Rule of Law (and possibly the people of New York), their brutish allies in Congress will lose credibility on related issues going forward. Potential measures expanding domestic spying, for instance, would encounter deep skepticism at the outset, rather than the cowed intimidation of politicians unwilling to risk appearing "weak" on national security. Similarly, detainee policy in the wake of Guantanamo's closure would be driven by human rights norms, rather than exigencies concocted by supporters of dictatorial Executive power.
In contrast, failing to prosecute would leave untouched the underlying policy baseline, and also set a dangerous precedent. Torture, detention and surveillance practices will likely shift somehow under the Obama Administration, in any case. But until Cheney and his minions stand trial, their allies will seek compromises both from within the bureaucracy and on the Hill.
The specter of the Vice President in deserved chains would not only drive neo-conservative hawks & brutes onto their political heels, but would also reaffirm the nation's commitment to the Rule of Law. In contrast, letting Rumsfeld, Cheney, Addington and Haynes enjoy their remaining lives with the respect due merely disgraced former public servants -- rather than the disdain reserved for traitors and war criminals -- sends a message that officials may violate even the most fundamental constitutional rights with impunity. That, in turn, will accelerate the race to the bottom in international standards and further erode human rights principles we once pioneered.
We could either presume that victims of torture are guilty, and contrive lawless tribunals to lend a veneer of legitimacy to a fundamentally rigged process -- or we could sincerely revisit the designation of enemy combatants by committing ourselves to legitimate and unbiased trials before qualified, experienced judges. Criminally prosecuting departing officials responsible for torture would strongly shift Washington's political winds in the latter direction.
Similarly, Congress and the next Attorney General will either bow to torturers and continue to shape policies around their most egregious crimes long after they leave office, or instead recover the Republic from their ongoing grip by forcing them to answer hard questions they have stonewalled long enough.
Only Congress or the incoming Administration can hold accountable senior Bush officials, and they will do so only in response to an overwhelming popular mandate. Americans committed to the Rule of Law should reject illegitimate policies as the starting point for 2009, and press our representatives to repudiate the Bush-Cheney legacy by enforcing laws violated by departing White House officials and supporting their criminal prosecution.