Just because he leaves office doesn't mean he shouldn't be prosecuted

At this point, I think it's somewhat futile to impeach George W. Bush and Dick Cheney. You know, there have been so many opportunities to prevent this Administration from committing its crimes, and everyone involved has dropped the ball every step of the way. And there's plenty of blame to go around.

You can blame Al Gore's lackluster campaign. You can blame the media for fostering the idea that the guy with the towel-snap would be a better president than the dull, plodding guy with the intellect because after all, isn't having a president you'd want to have a beer with the most important consideration, even if that guy is, from all accounts, a pretty mean piece of work when he gets a couple of drinks in him? You can then blame the media for its warflogging and general fellating of this guy long after it was clear that he was an evil, and indeed insane, man. You can blame voters who bought the idea that there was not one iota of difference between George Bush and Al Gore.

You can blame Jeb Bush for Florida's massive disenfranchisement of African-American voters. You can blame Roger Stone for the thugs he sent to Florida to disrupt the recounts. You can blame Katherine Harris. You can blame the designer of the butterfly ballot in Palm Beach county.

You can blame a Supreme Court that was already becoming hopelessly partisan on the Republican side, which felt that not damaging George W. Bush's credibility as president was more important than upholding the Constitution. You can blame all of us who knew that this guy was a loser but who didn't take to the streets because it was easier to just figure that it wouldn't be so bad becasue the old man would really be running the show and we lived through that administration -- because when push comes to shove, that guy who stood in front of the tank in Tiannenmen Squre had more guts than most of us ever will. Blame Senate Democrats, not one of whom would stand up in refusal to certify a bogus election.

You can blame Congressional Republicans, who fell in line behind this guy even after, as it now seems appallingly clear and about which I will write about as soon as I can focus, that there was no end of information coming in the summer of 2001 that an attack was about to take place on American soil -- and this Administration ignored it because some of it came from Clinton leftovers, and besides, the president needed a vacation after only six months in office. You can blame Congressional Democrats for not putting up any kind of a fight at all, even if only to do its job to speak up in dissent. You can blame Senate Democrats, including Hillary Clinton and John Kerry, for caving into bullshit out of craven political calculation.

You can further blame John Kerry, who got together with Dick Gephardt to kneecap Howard Dean in Iowa in 2004, only to run a campaign so lackluster and so inept that he made Al Gore in 2000 look like Barack Obama by comparison. You can blame Kenneth Blackwell, who rigged the Ohio vote in 2004 the way Jeb Bush did in Florida in 2000. And you can further blame John Kerry for taking his $14 million in campaign cash and going home before the votes were even counted. You can blame enough American voters who by now knew what George W. Bush was and voted for him anyway to even make Ohio an issue. You can blame Nancy Pelosi for taking impeachment off the table the minute she became House Speaker in 2006.

But most of all, we have only ourselves to blame; the citizens of this country, who have remained ignorant about civics, who refuse to accept the responsibility for vigilance that goes with Democracy and allowing an unelected president to make himself a dictator, and who, like most dictators, has committed the same kinds of atrocities that the tinpot dictator he deposed in Iraq has by embracing torture with an enthusiasm we associate only with the worst despots in history.

But just because George W. Bush will leave the White House in January 2009 shouldn't get him off the hook.

Elizabeth Holtzman:

Some contend that imposing criminal liability for acts performed in the heat of combat is wrong and that we can’t hold the administration to 20/20 hindsight. But we know these acts were not spontaneous, but part of a premeditated pattern of legal manipulation dating back years. At least since 2002, President Bush, Attorney General Gonzales and possibly others including the Vice President knew that torture and detainee mistreatment entailed criminal liability, which they sought to defuse with novel legal theories and retroactive suspensions of established law.

In a February 2002 memo, then White House counsel Alberto Gonzales warned President Bush about exposure to criminal liability under the War Crimes Act, mentioning the danger that future independent counsels or prosecutors might seek to enforce the law (they generally prosecute top government officials, including presidents). He therefore recommended opting out of the Geneva Conventions, famously calling them “obsolete.” His theory was that if the Conventions didn’t apply, then the War Crimes Act wouldn’t apply, so no prosecutions could be brought. The President accepted Gonzales’ theory and suspended the Conventions ’s protections for suspected Al Qaeda detainees.

But in June 2006 the Supreme Court rejected this theory and held the Geneva Conventions applicable to the treatment of all detainees, leaving the President open to liability for violating the War Crimes Act. So in October 2006 the White House effectively pardoned itself by slipping a little-noticed provision into the Military Tribunals Act, conferring effective immunity from the War Crimes Act on high-level officials by making it retroactively inoperative, from 1996 to 2006. Public attention was focused on habeas corpus and other controversial provisions in the bill, so it passed more or less unscrutinized.

Still, holes remain in the legal barricades the Bush administration has tried to erect around itself. Even if immunity from prosecution under the War Crimes Act stands, it only applies through 2006, not for mistreatment of detainees after that. And the 1994 anti-torture law applies throughout.

As Attorney General, Mr. Mukasey can try to plug these holes. He may shield President Bush and others from criminal liability; he may resist appointing an independent prosecutor to investigate White House actions. But he cannot, as the 2002 Gonzales memo recognized, tie the hands of future prosecutors. In lethal cases our anti-torture laws have no statute of limitations. Sooner or later, those who violated US law will be held accountable to them, if not by Mukasey, then by some future AG.

A justice department under John McCain will likely look not much different from the one we have now, one which still recognizes torture as a legitimate method of interrogation. We would hope that a DOJ under either Barack Obama or Hillary Clinton would take the opposite view. But the next Attorney General MUST bring charges against this president. And if the AG won't, then the World Court must order this president to be tried for war crimes. This man and his Vice President must not be permitted to remain free men, collecting pensions paid for by you and me, continuing to profit financially off the wars they started and used to bankrupt the country.