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Editor: Kevin Cole
Univ. of San Diego School of Law

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Wednesday, December 24, 2008

Is the Bush administration criminally liable for its lawlessness?

Whatever its other legacies, the Bush administration will be remembered for its contemptible disregard for the law in the post-9/11 war on terrorism. From the wiretapping of Americans without a court order to the waterboarding of suspected terrorists to the refusal to abide by the requirements of the Geneva Convention, many of the administration's policies can fairly be described as lawless.

But were they also criminal? Should officials, including Vice President Dick Cheney and former Defense Secretary Donald H. Rumsfeld, be put on trial, either in a court of law or in a forum like South Africa's Truth and Reconciliation Commission? As the Bush administration nears its end, calls for such a reckoning are coming from civil libertarians and some supporters of President-elect Barack Obama. Some even argue that President Bush should be indicted.
This editorial page has been uncompromising in its criticism of the Bush administration's flouting of international and domestic law. The administration was wrong to evade courts in seeking warrantless surveillance of Americans, wrong to establish the Guantanamo Bay detention center, heinous in its acceptance of torture. But we are wary of either the criminal prosecution of administration officials or some South-Africa-style process.

The former model is reminiscent of the Watergate scandal, in which several officials -- including President Nixon -- broke identifiable criminal statutes by obstructing the investigation of a burglary motivated by partisan politics. From there, of course, Watergate expanded into a web of criminal violations, from break-ins to the use of the IRS to punish political enemies of the Nixon White House. It's conceivable that individuals in the Bush administration violated criminal law. But if they did so as part of a post- 9/11 response to terrorism, it would be all but impossible to prosecute them successfully.

Besides, the scandal of the Bush administration wasn't a matter of individual, politically motivated violations of law. Rather, it was a systemic failure to take seriously the spirit as well as the letter of this country's commitment to the humane treatment of prisoners or the privacy rights of Americans secured by the Foreign Intelligence Surveillance Act, or FISA.
That's a failure in which Congress must share culpability with the administration. It was the administration that, with the help of compliant legal counsel, rationalized the use of "enhanced" interrogation techniques such as waterboarding, sleep deprivation, humiliation and the use of dogs to intimidate prisoners of war and suspected terrorists. But, as the vice president argued recently, Congress at first either acquiesced in, or offered muted objections to, the administration's policies. That the failures were collective rather than individual makes them no less appalling, but it does suggest that a criminal prosecution will not remedy them. [Mark Godsey]
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