No One Is Above The Law

by Dee Newman

As I reported yesterday a recent USA Today/Gallup Poll showed that almost two-thirds of respondents favored investigating the Bush White House for authorizing torture and warrantless wiretapping.

President Obama has said that “nobody is above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen . . . But," he went on to say, "generally speaking, I'm more interested in looking forward than I am in looking backwards."

And, rightly so. The president has too much on his plate to clean up from the last administration (both domestic and foreign) to be looking backwards.

Fortunately, it looks as though that President Obama will not have to initiate an investigation into the torture policies of his predecessor. According to Newsweek's Michael Isikoff, the Office of Professional Responsibility (OPR) already launched an investigation during the later part of the Bush Administration.

A representative of the Justice Department promised that OPR's report would be released sometime last November, 2008. But, according to Isikoff, Bush's attorney general, Michael Mukasey, objected to the draft.

Apparently, the OPR report castigated the former Justice Department lawyers and authors of the infamous “torture memos,” John Yoo and Jay Bybee.

John Yoo has admitted to redefining torture and advising Bush that he could authorize waterboarding, which Bush apparently did, according to Yoo, three times in the years after the 9/11 attacks. Supposedly, Yoo even advised the White House that it could evade prosecution under the War Crimes Act by claiming self-defense. Yoo should have known that the Convention Against Torture allows absolutely nothing, including a state of war, to be used as a justification for torture.

Recently, former Vice-president Dick Cheney admitted to authorizing waterboarding, which has long been characterized as torture under U.S. and international law.

It has been widely reported that Condoleezza Rice, George Tenet, Colin Powell, John Ashcroft, and Donald Rumsfeld met with Vice-president Cheney in the White House Situation Room and authorized “enhanced interrogation techniques,” including waterboarding. Later, when asked, President Bush claimed he knew about it and approved.

Defenders of the Bush Administration have maintained that President Bush and Vice-president Cheney are innocent of any wrong doing because they relied on legal advice from Justice Department lawyers. However, if the bipartisan report of the Senate Armed Services Committee is correct that "senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees," then that defense may be inadequate.

Isikoff has reported that there may exist email traffic between the White House and Justice Department lawyers that could be incriminating both to the lawyers and the Bush Administration.

There is legal precedent for criminally prosecuting lawyers for giving legally flawed counsel that causes human suffering, injury and/or death.

The Office of Professional Responsibility can refer Yoo and Bybee for criminal investigation or, at the very least, report them to their state bar associations for possible disciplinary action.

Though Senator Patrick Leahy has asked for a Truth and Reconciliation Commission and Congressman John Conyers has introduced legislation to establish a National Commission on Presidential War Powers and Civil Liberties, both of these commission would be inadequate, allowing those responsible for torture, abuse and warrantless wiretapping and domestic spying to possibly avoid prosecution.

According to news reports, a final version of the OPR report will soon be presented to Attorney General Eric Holder. He should appoint a Special Prosecutor to investigate and indict anyone who authorized the use of torture, including any Justice Department lawyer who gave anyone in the White House so-called "legal cover” for his or her criminal actions.

President Obama is correct; no one is above the law. If we are to ensure that our leaders never again authorize the use of torture, justice must be served.