I expect this year to start getting serious whether Obama wants it to or not, and a lot of the effort will have to come from citizens putting pressure on their representatives and the media. Dogging this administration maybe necessary to see justice done.
The destruction of CIA tapes of interrogation sessions could be obstruction of justice, for instance. In two other areas, in particular, the administration appeared to flagrantly violate the law.
First, the administration violated the Foreign Intelligence Surveillance Act (FISA), which set legal standards for wiretapping American citizens in national security cases.
Second, the administration violated legal prohibitions on the use of torture (and cruel and inhuman treatment). Violations of both laws are felonies.
Presumably the Bush administration believed that it was acting legally. Genuine belief by officials that their conduct was legal might militate against prosecution, but alone should not be enough to insulate illegal and unconstitutional behavior. High government officials must be held accountable for their actions. Otherwise future officials will realize that they can violate the law with impunity by simply claiming that they believed the law to on their side.
Having chosen to violate the law, administration officials should be held accountable. At the very least that requires investigating and reporting on their actions. More likely that includes legal action against at least some of the actors.
The other obvious violation of the law is the use of torture. The argument against torture is powerful: claims that "enhanced interrogation" methods, as the administration preferred to call its practices, remain unproven assertions. In fact, counter-terrorism officials familiar with the most noted cases discount the information acquired as a result of torture. In general, they dismiss the value of intelligence procured under duress and emphasize alternative strategies for getting information. Even FBI Director Robert Mueller admitted that he didn't "believe it to be the case" that the Bush administration's tough interrogation practices prevented any terrorist attacks in the U.S.
Moreover, torture tarnishes America's global reputation, threatening Washington's ability to win the cooperation of friendly states in fighting terrorism. The practice also puts American forces at risk. A former special intelligence operations officer writing in the Washington Post under the pseudonym Matthew Alexander argued after his experience in Iraq: "It's no exaggeration to say that at least half of our losses and casualties in
have come at the hands of foreigners who joined the fray because of our program of detainee abuse."
Finally, torture erodes America's moral core, so critical to what makes America worth defending. Notes Charles Fried of Harvard Law School, who also served as Solicitor General under President Ronald Reagan: "we cannot authorize indecency without jeopardizing our survival as a decent society."
Here, too, if President Bush believed that he lacked sufficient authority under the law to protect America, he should have proposed that Congress amend or repeal the law. He did not have the option to ignore it.
Did the administration utilize torture?
"There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account." Ask Robert Turner, a Reagan White House attorney who said that war crimes "may well have been committed." Ask Susan Crawford, a retired judge (and Republican) appointed by the Defense Department to decide whether to charge Guantanamo Bay inmates. She called the treatment of one Saudi inmate torture, contending: "The buck stops in the Oval Office."
In short, detainees were tortured. The only questions are how many people were tortured and who were responsible for the decision to use torture. To prosecute would not be to criminalize policy differences, but to punish a criminal policy.
The issue appears to have been debated at high highest levels of the White House if not in the Oval Office itself, and that's where responsibility should be lodged. A bipartisan Senate Armed Services Committee report concluded 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."
http://www.antiwar.com/bandow/?articleid=14119
On the torture issue, at least, the administration may find it difficult not to prosecute. When Eric Holder told the Senate Judiciary Committee that waterboarding was torture, he was telling the nation that the Bush administration had violated the law. Noted Jennifer Daskal of Human Rights Watch: "It would be contrary to the principles of the criminal justice system for the attorney general to say he believes a very serious crime has been committed and then to do nothing about it."
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