In his State of the Union address, President Obama announced a new special unit to investigate abusive lending and packaging of mortgage risk that led to the housing and financial crisis. These abuses began years ago, under the Bush administration and possibly before. Yet since it's widely felt that impunity for banks and financial institutions hurts our economy and undermines our rule of law, the president's proposal was well received.
In the same way, treating Bush administration officials with impunity for their criminal actions undermines the Constitution and the rule of law, which is why we need a special prosecutor to investigate them. Impunity for the powerful doesn't just breed cynicism and anger in the public; it helps ensure that misconduct, criminal or otherwise, will be repeated. It creates a dual system of justice, corroding democracy itself. The longer we wait, the greater the damage and the higher the price we pay.
Take the Iraq War. The Bush team falsely told Congress that Iraqi weapons of mass destruction threatened us with a "mushroom cloud" and that Saddam Hussein and al Qaeda were in cahoots. They said a military effort would be a "cakewalk," lasting five months and costing $50 billion. In fact it lasted over eight years, cost more than $1 trillion, killed more than four thousand Americans and hundreds of thousands of Iraqis, and injured tens of thousands of our troops.
If it seems as though there should be a law against this, there is; it just hasn't been enforced.
Conspiracy to defraud Congress is a federal crime; a proper inquiry into whether the Bush administration violated the law is required. So is a comprehensive investigation into the origins of the war, whether or not criminal activity was involved. So far, the U.S. has refused to undertake a full-scale inquiry to ascertain "what the president knew and when he knew it."
Doing so wouldn't be quixotic or backward-looking. Other democracies have acted. Britain and the Netherlands undertook investigations of their involvement in the Iraq War, so why can't we? Britain conducted extensive hearings, calling former Prime Minister Tony Blair, among others, to testify. While the British inquiry panel has not yet issued its conclusions, the Netherlands inquiry found Parliament was deceived and that the Iraq war was contrary to international law.
Lying to Congress and the American people to sell a war is an especially dangerous thing to treat with impunity. Presidents need to know that they will suffer serious consequences if they try it -- that they could realistically be found guilty of a federal crime, or, if the misconduct doesn't rise to that level, that official inquiries and disclosures could shame them forever, damaging their standing and legacy.
Other misdeeds of President Bush and Vice President Cheney also require review: Torture and mistreatment of prisoners violate the anti-torture statue and possibly the watered-down War Crimes Act. Authorizing illegal wiretapping violates the federal anti-wiretapping law. Both would carry a criminal penalty and both must be investigated.
Refusing to review possible criminal misconduct by the Bush administration also cripples American power. It makes it harder for the U.S. to condemn impunity abroad. How effectively can we argue for the rule of law in Syria or Iraq or anywhere else if we don't apply it fully here at home?
And it leaves Americans open to foreign prosecution. If we refuse to act, other countries will investigate and prosecute U.S. officials who may have violated criminal or international law. If their citizens were mistreated in Guantanamo, or torture took place on their soil, they can claim jurisdiction. Right now, Spain is launching an inquiry into top Bush administration lawyers who greenlighted torture.
In the long run, no matter how much the U.S. tries to duck accountability, there will be no impunity. Chilean dictator Augusto Pinochet was finally prosecuted for torture and murder, despite 27 years of evading it.
In the U.S., there is no statute of limitations for certain cases of torture, including when death results. One day, there will be prosecutions for the misdeeds of the Bush administration. Then the whole story of torturing and mistreating detainees will be spread out on the table of history for all to see. The question is, how long will we have to live with impunity and how much more damage to American democracy and power will we suffer until that day comes?