THE BLOG
10/17/2006 06:33 pm ET Updated May 25, 2011

President Bush's Grave Misconduct

Recent events--the Foley scandal, the Woodward book, revelations about White House scorn for evangelical Christians, the Abramoff scandal, not to mention the increasingly dire situation in Iraq--have all converged in a kind of tsunami headed for the Republican majority in the House and Senate. Of course, it could change course.

But, Democratic control would make impeachment a serious reality.

As I have pointed out many times, impeachment is not only constitutionally warranted but necessary, given the serious abuses of power engaged in by President Bush. Impeachment will help restore the rule of law and repair the damage he has done to our democracy. If on the other hand there is no impeachment, President Bush's grave misconduct, including his refusal to obey the law with respect to wiretapping and his driving the country into war on a basis of deception, will become just the starting point for another President who wants to thumb his nose at our constitution.

The passage of the military tribunals' bill provides another important reason for impeachment. That bill contained a pardon buried deep within it of President Bush and his top team for possible violations of the War Crimes Act of 1996. That Act makes it a federal crime to mistreat detainees in violation of the Geneva Conventions, but the military tribunal bill guts the War Crimes Act and makes the changes retroactive to 1997.

In a remarkable example of the "modified limited hangout"--a Watergate term for covering up by exposing a bit of the truth--the Bush Administration admits that the bill will grant immunity to CIA interrogators for violations of the War Crimes Act. But it never so much as hints that immunity would also extend to those who were complicit with those interrogators. Since the War Crimes Act applies to all US nationals, immunity would also extend to anyone who directed, authorized or otherwise aided and abetted those interrogators in their abuse, including the President, the Vice President, the Secretary of Defense and the Director of the CIA.

President Bush has been concerned about criminal liability under the War Crimes Act since at least January 2002, when his then White House counsel urged that the Geneva Conventions protections be withdrawn from Al Qaeda detainees to reduce the possibility of such prosecutions. Accordingly, in February 2002, President Bush directed that Al Qaeda would not qualify for protections under the Geneva Conventions, a direction that the US Supreme Court nullified in the recent Hamden case. This nullification opened to criminal liability all government officials who ordered the abuse of Al Qaeda detainees in violation of the Geneva Conventions as well as those who actually abused the detainees. To avoid this, President Bush has called for weakening the War Crimes Act.

Although no full investigation has ever been conducted into the President's role in the abuse of detainees--and so we do not know what he ordered and what he knew--nonetheless there are strong indications that the President at a minimum condoned the mistreatment. He has consistently, including up to the present moment, tried to shield those who abused Al Qaeda detainees from criminal liability. Moreover, he wants the right in the military tribunal's bill to continue the practices that violate the Geneva Conventions and the original War Crimes Act, such as painful stress positions, subjecting detainees to extremes of heat and cold, food deprivation and acts of humiliation such as forcing detainees to remain naked.

No president should be able to violate the criminal law, including the War Crimes Act, and then in a stealth maneuver exonerate himself and his accomplices from liability. That makes a mockery of the rule of law.

If Congress cannot undo this immunization of higher ups and restore criminal liability and accountability on the part of higher ups for the mistreatment of detainees, then the only remedy for any role President Bush may have played in such mistreatment would be through impeachment.