TEHRAN, IRAN - 01 June 2004: An Iranian couple walk past mural paintings depicting scenes from the torture of Iraqi prisoners by US soldiers at the Abu Ghraib prison near Baghdad, on a major highway in the Iranian capital Tehran.
Ten years ago, a series of horrific images started streaming across the internet, showing Iraqi internees at the now-infamous Abu Ghraib prison in “various poses of shame and degradation,” as writer and former soldier Aidan Delgado put it, while US soldiers leered in the background. Delgado was stationed at Abu Ghraib when the scandal broke. “I am amazed to see the depravity and variety of the abuse but I am not surprised at all that it happened,” he writes in The Sutras of Abu Ghraib, which tells the story of Delgado’s transformation from a young enlistee to conscientious objector after witnessing firsthand the brutality of the Iraq occupation and the abuse of unarmed Iraqis at Abu Ghraib:
Some dark and obscene atmosphere had built inside the prison camp, so much so that it had turned ordinary, decent men into ghoulish caricatures. Sergeant Toro’s prisoner-transport story had reinforced my impressions of the harsh and repressive environment. It was common knowledge that guards would threaten and manhandle the prisoners—such conduct was almost a badge of manhood. Being tough with the detainees was just part of being a “good soldier” and a team player. The way the younger MPs referred to the prisoners and to the Iraqis in general made this no secret. I had heard about the sexual nature of the photographs: the forcible nudity, the simulated homosexual acts, the videotaped sex between guards and prisoners, but I was taken aback by the particular intensity and sadism of the photographs. Somewhere along the way, in the midst of all the hardship, the mortars and attacks, we had become oppressors. We had become sadists. We had become torturers.
Nine years ago, I encountered a man from Ohio on a flight from LaGuardia to the Akron-Canton Airport just as the Iraq War was starting. I wish I could talk to him again.
While sharing armrests but diverging on political leanings, we had a rather heated tête-à-tête about war in Iraq. He was firmly in favor of the war, and, in fact, wanted all the shock and awe the U.S. could deliver. He reasoned that Iraq was linked to al Qaeda and 9/11, and we couldn't let them get away with it.
I was fresh from the massive anti-war marches in New York and questioned the truth of any connection between Iraq and al Qaeda, although President Bush and Vice President Cheney had drawn the association with regularity. My seatmate's whole body leaned over to the right -- literally. "I feel so sorry for you," he said. "How cynical you must be to think that the president would lie."
Now, nine years later, I feel sorry for all of us. If only, like the Beatles' Revolution 9, played backwards by disc jockeys of the day, we could rewind this tune. The false statements and lies that were used by President Bush and his team to drive the nation to war and occupation in Iraq have caused immeasurable heartbreak with thousands upon thousands of lost and damaged lives -- U.S. and allies' personnel, Iraqi civilians and military, international journalists and bystanders. The financial costs to the U.S. have reached $800 billion, according to the American Progress Center's Iraq War Ledger, and the ticker is still going.
Now we know that President Bush and his team lied repeatedly -- investigative researchers at the Center for Public Integrity documented 935 false statements about Iraq in the two years after 9/11 (memorialized in a song by Harry Shearer). More than mere harmless "pants on fire" posturing, these statements violate the federal criminal law.
Now that Bush and Cheney are no longer in office, the law can reckon with them on this and other outrageous incursions, such as wiretapping without warrants and torture. And prosecuting is a mighty good idea if we are to have a robust democracy down the road.
President Bush deceived Congress in two direct ways -- one was a speech; the other was a letter sent to Congress, stipulating that he had met the prerequisites set by Congress in order to launch a war into Iraq.
The speech came on January 28, 2003 : the State of the Union message personally delivered to both houses of Congress. Two-thirds of the speech was devoted to Iraq, and much of what the president said was simply false. It was here that President Bush asserted that Iraq was buying the uranium needed to build a nuclear weapon from a country in Africa. The "sixteen words," later retracted, were known to be untrue. Their deceptiveness was unmasked when former Ambassador Joseph Wilson wrote that he had traveled to Africa before the war at the behest of the Bush administration and had reported back that Iraq was not buying uranium. (As told in Fair Game, Wilson's statements spurred a vicious White House reaction targeting his wife, CIA agent Valerie Plame.)
President Bush also said that Iraq was procuring aluminum tubes for nuclear weapons, but that matter had already been dashed as wrong by the International Atomic Energy Agency, noted Joby Warrick in theWashington Post. Finally, President Bush said, as my Ohio seatmate parroted, that "Saddam Hussein aids and protects terrorists, including members of al Qaeda," but those connections had been debunked immediately after 9/11 by counterterrorism expert Richard Clarke.
Things only got worse in the weeks after the State of the Union. Congress, as the branch of government charged with declaring war, had set stipulations in October 2002 that President Bush had to satisfy before a war could be launched in Iraq. Rather than meet them, the president flouted them. That is, he lied. On March 18, 2003, the president literally signed, sealed and delivered letters stating that a war in Iraqwas a "necessary" action against those who "planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001." Not only was war not necessary, Iraq had not aided in the attacks of 9/11.
The president's letter also certified that Iraq posed a "continuing" threat to the U.S. As the president knew, it did not -- it had no weapons of mass destruction (WMD) and none were in development. The president admitted this to Prime Minister Tony Blair before the war, according to leaked British memos obtained by international lawyer and author Philippe Sands.
Piling on the false statements, the president stated in the letters, untruthfully, that "peaceful means" would not protect the U.S. But weapons inspectors were peacefully in Iraq and, while they had found no WMD, they were willing to continue to look. In addition, the president blew off the UN Security Council andrefused to fulfill the requirement for a critical second resolution before going to war (it would have been vetoed). International lawyers objected vehemently to the rejection of this diplomatic process, and this has become an ongoing scandal in Britain, where the Iraq Inquiry has been taking testimony, much of it damning, on the start of the Iraq war.
Lying to the U.S. Congress is a federal crime under Section 1001 of the federal code, and working in concert with others to lie to Congress is prohibited by conspiracy laws under Section 371. These are not mothballed laws, but ones that are being used regularly to charge others with crimes. Former Yankees pitcher Roger Clemens was criminally charged for making a false statement to Congress in denying any use of steroids. The American League's 2002 Most Valuable Player Miguel Tejada pleaded guilty in 2009 to making a false statement to Congress about his knowledge of other players' use of banned substances. Of Tejada, Assistant U.S. Attorney Steve Durham said, "People have to know that when Congress asks questions, it's serious business. And if you don't tell the truth -- and we can prove you haven't told the truth -- then there will be accountability." Tejada was placed on probation, ordered to do 100 hours of community service and required to pay a fine of $5,000.
Not even that modest level of accountability has been applied to President Bush. Lying about knowledge of steroids is obviously a blip on the scale compared to lying about 9/11, WMD and the need for war. We still have had no clear explanation of why President Bush and his team drove the nation to war and occupation in Iraq; in fact, in his book, Decision Points, the former president said that he had no apologies even though no WMD were found, and he thought the world was better off for the war. He was completely oblivious to the suffering of so many who lost loved ones or were injured, displaced, tortured and permanently harmed.
We need to put any future president on notice -- now -- that lying to Congress about the need for war is serious business. Prosecution under the criminal laws of the United States is the best way to hold President Bush accountable. I'd like to find that man from Ohio; I think he'll agree -- we can't let him "get away with it."
Today's post is from the authors of Cheating Justice, Cynthia L. Cooper, an award-winning journalist and lawyer, and Elizabeth Holtzman, a lawyer, former prosecutor and former member of Congress who served on the House committee that investigated Watergate.
When President George W. Bush and his team left office, mounds of misdeeds were left to fester. Some of their transgressions in office were so shocking – lying to Congress in order to embroil the nation in war and occupation, illegally wiretapping Americans without warrants, authorizing torture that had been outlawed by U.S. and international law – that he and Vice President Cheney probably should have been impeached and removed from office.
Instead, they completed their terms and sped away. Even though Bush publicly announced in his 2010 memoir that he had personally authorized waterboarding, a recognized form of torture -- “Damn right,” he is quoted as saying – hardly a peep was heard about seeking accountability. But how can that be? Key to preserving our democracy is the concept that no person is above the law.
In order to ignite a national conversation on the topic, we set out to show how and why the president and vice president should be held accountable – especially, how they can be prosecuted. That meant looking at the available evidence, investigating precisely what laws are implicated and determining, as best as possible, whether a prima facie case could be made. We found enough to make a courageous prosecutor sit up and take notice, although the statute of limitations is ticking in some areas. We found clear problems under laws related to the conspiracy to deceive Congress, foreign intelligence surveillance and U.S. anti-torture laws – each of which needs prosecutorial attention.
Perhaps the most startling example of their extraordinary actions was the gutting of the War Crimes Act of 1996. This law was a healthy, robust and muscular law when President Bush took office. It had a proud history -- introduced in Congress by a Republican from North Carolina, passed by a bipartisan majority, signed by a Democratic president. The law implemented the Geneva Conventions for the U.S. and prohibited U.S. personnel from torturing detainees, and banned degrading treatment, cruelty, acts of humiliation and outrages against personal dignity.
To understand how far the president and vice president strayed from the War Crimes Act means facing what happened to some detainees. For example, at Guantanamo, Mohammed al Qahtani, a Saudi, was detained under blinding continuous light and extreme isolation, interrogated 20 hours a day, threatened by an aggressive dog, led around on all fours with a leash, exposed to life-threatening cold temperatures, subjected to beatings, forced nudity, forced enemas – and more. Other “approved” techniques included locking a detainee in a closed box and dropping in an insect. The pictures that eventually emerged from Abu Ghraib were only a sliver of the story.
The evidence shows that the president and vice president authorized and personally approved a scheme of cruel and inhuman treatment of detainees. But when the 2006 Supreme Court decision in Hamdanv. Rumsfeld said that the Geneva Conventions could not be summarily erased, Bush and Cheney knew that they might be held criminally liable under the War Crimes Act. They went into high gear to protect themselves, slipping a series of loopholes into another law, the Military Commissions Act of 2006, under the deceptive sub-heading of “implementation of treaty obligations.”
These changes shredded the War Crimes Act. Conduct that was previously illegal was suddenly made legal. For example, crimes of “cruel and inhuman treatment” were eliminated from the law in an apparent effort to legalize beatings, sensory deprivation, and the like. Even more astonishing, the law was made retroactive to 1997 -- something that may be unprecedented in U.S. history.
These examples of legal hocus-pocus are windows into the extent of the Bush efforts to create buffers of personal protection from the law. But, even in this area, other laws may still come into play, especially the U.S. anti-torture law and international human rights protections.
The actions of Bush and Cheney sully our democratic heritage and stain our constitutional system. If they are allowed to “get away with it,” nothing will be able to stop any future president or high official from similarly trampling on our rights and violating other criminal laws. It’s not too late, and people of conscience can make a case, knowing that the country as a whole will suffer if Bush and Cheney remain uninvestigated, unprosecuted and unaccountable.
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 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?
“Here at last is a book for everyone who is outraged—or just bewildered—that Bush, Cheney and other top officials escaped prosecution for their many flagrant violations of the law. Will there really be no consequences for the men who lied us into war, compromised our civil liberties, and made "waterboarding" and "Guantanamo" household words? Passionately, clearly and concisely, Elizabeth Holtzman lays out how it happened, how the Bush Administration secretly sought to immunize itself from prosecution, and how we can still hold the perpetrators accountable.” —Katha Pollitt, author of Subject to Debate
“This book makes a vital contribution to addressing the abuses of power of the Bush administration. Unfortunately today, nearly three years after the end of the George W. Bush administration, our nation still labors under the many excesses of that era. Holtzman’s book offers a cogent and elaborate account of that time period and important insights into how we can prevent those from recurring.”—John Conyers Jr., author of The Constitution in Crisis
"Elizabeth Holtzman, who helped bring President Nixon to justice in the Watergate hearings, now takes on the bigger, deeper and even more crucial task of investigating—and exposing—exactly how President George W. Bush and Vice President Cheney started an illegal war, subverted civil liberties, human rights and the law itself, and then used the national trauma following 9/11 to cover it up. Start to read Cheating Justice, and you won't be able to put it down."— Gloria Steinem, co-founder Ms. Magazine, writer and feminist activist
Despite the many misdeeds of and abuses of criminal law by the Bush administration, there has been no accountability. Former U.S. representative Elizabeth Holtzman pairs with lawyer and journalist Cynthia L. Cooper to explain why we can't "just move on." They lay bare how the Bush-Cheney administration broke a multitude of laws and betrayed American values, and exactly why and precisely how we, the people, must bring them to justice for their crimes, their cover-ups, and their deceit.
Backed by strong evidence gleaned from "astounding" research, Holtzman and Cooper argue that the Bush administration not only violated various U.S. laws but also changed many laws to escape prosecution for their crimes later. The authors demonstrate how a failure to hold George W. Bush and Dick Cheney accountable would set a dangerous precedent for the future leadership of America.
Bush and Cheney deceived Congress and the people to drive us into a war in Iraq; they claimed the right to wiretap illegally and to eavesdrop on citizens; and they authorized torture, upending laws and breaching international treaty obligations. Yet, both Bush and Cheney are boldly unabashed about their offenses. In his memoir, President Bush makes no apologies for his decision to start a war in Iraq, though no weapons of mass destruction, the ostensible reason for the war, were found there. And once out of office, Bush proudly said, "Damn right," about his approval of waterboarding, a clear violation of the Geneva Conventions and U.S. law. Recent revelations about the extent and depth of their crimes, catalogued in detail here, make the need for accountability imperative.
As a member of Congress and part of the committee that investigated and held hearings on the conduct of President Richard Nixon in the Watergate scandal, Elizabeth Holtzman condemns Bush's adoption of Nixon's claim that he acted in the interest of national security. Using Watergate-era reforms as a model, Holtzman details the steps necessary to undo the damage that the Bush-Cheney administration inflicted and explains how we can establish new protections to block future presidents from similarly abusing the law. Cheating Justice is not only a call to empower the American people, and a firm insistence that the nation's leaders are not above the law; it is also a blueprint by one of America's top legal minds for bringing Bush to justice and protecting the future of our democracy.