Cheating Justice: How Bush and Cheney Attacked the Rule of Law, Plotted to Avoid Prosecution, and What We Can Do about It

From the Introduction: Why We Shouldn’t Simply Move on

Before President George W. Bush left office, many people speculated that he would pardon himself as protection against possible future prosecution for crimes. People assumed he would do the same for Vice President Richard B. Cheney and his top cabinet officials, advisors, and aides. There was a good deal of discussion on cable TV news, blogs, opinion columns, and political talk shows: How extensive is the pardon power? Had self- pardons been tried before? When would it happen?

“In Bush Final Days, Are Pardons in the Works?”  asked NPR’s All Things Considered on November 23, 2008.   “Will Bush Pardon  Himself ?” wrote  Human  Rights  Watch  director  Kenneth  Roth  in the  Daily Beast. “Get ready for mass pardons,” headlined a pundit in the Hill’s blog.

The president did nothing of the sort.  Instead,  he retired  without  a seeming  ruffle of tension,  helicoptering out  of Washington, D.C.,  and heading to a new home  in a Dallas suburb  and his ranch  in Crawford, Texas.  When   he  publicly  emerged,  two  years  later,  he  was touting   a newly published  memoir,  and proudly proclaiming  that  he had approved a form  of torture, waterboarding—“Damn right,”  he  said in his memoir,  Decision  Points. The  former  president   had  no  apologies  for  starting a war in Iraq that  had taken the lives of thousands  and ruined many more: he thought the world was better  off for it, even though  no weapons  of mass destruction, his ostensible  reason  for  the  war, were  found in Iraq.

The vice president didn’t even wait for his term of office to end before he started burnishing his role in waterboarding, war, and warrantless surveillance. “Those who allege that we’ve been involved in torture or that somehow we violated the Constitution or laws with the terrorist surveillance program simply don’t know what they’re talking about,” he said in an ABC News interview on December 15, 2008.

Neither seemed perturbed by the prospect of prosecution.  Now we know why.
While in office, they had already created walls of protection to prevent the sting of the law from reaching them.  Behind the scenes, President Bush and Vice President   Cheney worked—tirelessly, it seems—to inoculate themselves against every manner and form of accountability for misdeeds.

They passed provisions changing the laws that they had violated, then giving the changes retroactive application. They made existing laws so convoluted and confusing that probably no prosecutor could enforce them. E-mails in their computers conveniently disappeared, and the retention systems failed. They stamped “state secrets” on legal actions that might open their misdeeds to scrutiny. They set up straw facades and fake justifications, and even slipped them in the law as pop-up defenses.

In short, in an unprecedented way in American history, they engineered and fixed the system from the inside, building buffers of protection for themselves—behind a moat, on a hill, locked and gated, seemingly above the law. This book explores how the Bush administration used its power to manipulate the system, cheat justice, and get away with crimes.

Except . . . they had a lot of ground to cover. Their transgressions were so vast that they left open some small keyholes where the law can still reach them. This book is also about how to hold them accountable for the crimes they committed.

In the years since they departed,  more information has emerged about their  actions—documents have been  declassified, investigative  reporters and authors  have probed,  nonprofit  groups  have filed Freedom  of Information  actions;  in  some  areas,  Congress  has conducted  inquiries.  Former White House personnel have stepped forward; whistleblowers have revealed secrets and leaked documents; lawsuits have pried open hidden truths. Bit by bit, the record is unfolding. The president and vice president have even incriminated themselves.

This book describes the multifarious ways in which President Bush and his team violated America’s criminal laws and the sophisticated counter- measures they took to avoid being held liable for these violations. Showing a breathtaking contempt for the rule of law, they disregarded laws that got in their way and, when exposed, rushed to Congress to push through a rewritten version of those laws to their specifications to get off the hook. They did this while much of the nation was still absorbing and rebounding from the attacks of 9/11.

Understanding the depth of their crimes highlights one thing—it is even more important for our democracy that we refuse to let them get away with it.

A president and vice president who have committed serious misdeeds in office must be held accountable.  Fortunately, this is a situation that the framers of the Constitution anticipated. The founders were wise enough to know that presidents would be fallible and, as such, might commit a variety of crimes. The presidency, the founders knew, was not always going to be held by people who did the right thing or acted honorably; they explicitly provided for impeachment while presidents held office and prosecution of presidents after they left office, too.

Thus far, President   Bush, Vice President   Cheney, and their team seem to have gotten away with their misdeeds. Their motto seems to be “Catch me if you can,” and they remain unindicted, unprosecuted, and unaccountable.

Why do we need accountability at all? To ignore the misdeeds of the president and vice president is to signal to the American people that their crimes are of no importance.  To give them a free pass for their illegal activities and violations is to send a message to future presidents—do what you will break any law, don’t worry. To turn our backs and look away is to say that we, the people, are oblivious, blinded, unaware of their deceits and destruction—or, worse yet, that we are nodding  in agreement  and giving our consent.  Without strong action holding them responsible, the precedent of a runaway lawless administration will continue to haunt us. Have we celebrated 220 years of our Constitution to reach a point where, like a banana republic, our highest elected leaders can engage in crimes of illegal surveillance, lying to take the nation into war, torture, disappearance and degradation with impunity? Let’s hope not. Failing to hold the most powerful among us accountable is the sign of a democracy that is losing its way.

In order for a movement for accountability to rise and for the sake of generations to follow, it’s important to say that some of us were not blind, that some of us were willing to act.

It may be a difficult path to follow, but the alternative is more difficult to imagine—an America without accountability and justice.

The Bush-Cheney Administration: Disaster for Democracy
As someone  who  witnessed  Watergate up  close—I  was on  the  House Judiciary Committee that  voted  for the  articles  of impeachment against President  Richard Nixon in 1973—I became increasingly concerned about long-lasting  ramifications  of the illegal acts and injurious decisions of the Bush administration.

While President Bush and Vice President Cheney were in office, I advocated for their impeachment. For me, the model was what happened when President   Nixon committed   grave offenses against the Constitution and laws of the United States. In response, the country came together and refused to allow a president to take the law into his own hands. The American people were outraged by his systemic abuses of power and his lies. The  House  Judiciary Committee reviewed dozens of volumes of evidence  about  illegal behavior  by President  Nixon  extending  over several years—including  the  covert  bombing  of Cambodia,  illegal wiretapping, the Watergate break-in,  and the conspiracy to obstruct  justice, that is, the cover-up—and  came to the  conclusion  that  impeachment was necessary. The vote reached across party lines, and the country accepted the verdict.

All these years later, I still remember that it was hard to vote for President Nixon’s impeachment, even though I was no fan of his policies and particularly disagreed with his pursuit of war in Vietnam. While few were eager to find our president engaged in criminality, it strengthened the country to know that, in the end, most Americans valued the rule of law more than the fate of any one person. The process in Watergate had worked well to protect the nation from a criminal president.

The Nixon impeachment process, because it was done so fairly, has withstood the test of time, and remains a high-water mark in the nation’s efforts to make sure its officials respect the law.

I also believed that more than enough evidence existed to conclude that President Bush and Vice President Cheney had violated their oaths of office and committed  “high crimes and misdemeanors”—and in ways especially damaging to our democracy.   But unlike Nixon,  President  Bush and Vice President  Cheney did not face impeachment proceedings,  nor did any significant legal review of their actions take place.

In contrast to the situation with President Nixon, there has been no official reckoning of the actions of President Bush. A grand jury named President Nixon an unindicted co-conspirator. A House Judiciary Committee impeachment report set forth his “high crimes and misdemeanors.” An official record was made of his misconduct, so that history could not mistake it and it could not be whitewashed with propaganda, memoirs, or an attempt to rewrite the facts.

Even without a Bush-Cheney impeachment, I knew that accountability could come after they left office. That was another lesson from Watergate. President Gerald Ford, who took office when Nixon resigned, recognized that a former president could be prosecuted for his crimes in office. President  Ford  took  the  extraordinary   step  of  issuing  a  pardon  to  former president Nixon, insisting that he had “suffered enough” by having to resign in order to avoid impeachment. President Ford’s pardon of Nixon to prevent a possible prosecution was roundly denounced at the time because it created a dual sense of justice. The American people did not want one set of criminal standards for a president and another for the rest of us. This may well have been the most important factor in Ford’s defeat in the next election.

When I started thinking about paths to accountability for the criminal misdeeds of President Bush and Vice President Cheney, I intended to make the case for prosecution.  Based on what I already knew and had researched and written about, I expected to find a range of illegality—and I did. What I hadn’t expected to find were the mounting pieces of information and evidence  that  showed a pattern  and practice  by which President  Bush and Vice President  Cheney, after undertaking illegal actions and keeping them secret, went on to set up fake justifications for their behavior, blamed others, inserted hidden defenses in the law, and schemed to protect themselves from  the  consequences  of their  criminal  conduct  by every means  possible. As I examined the facts more closely, I saw that they had even succeeded in changing laws in an attempt—possibly successful—to exonerate themselves.

This could happen only in a country still traumatized by the World Trade Center and Pentagon attacks and willing to believe a president, no matter what.  Taking advantage of this post-9/11 atmosphere, President Bush conducted illegal wiretapping, lied about it, and when exposed, asserted that he could flout the law. Surveillance of Americans—secret and unnoticed—can do permanent damage by chilling diversity and depth of opinion and speech. President Bush, no doubt, knew how sensitive Americans are to invasions of their privacy. Before he left office, he pushed through changes in the law that might protect him from prosecution.

President Bush secretly authorized and unleashed systemic torture and cruel and inhuman treatment in the interrogation and handling of detainees. While in the White House, he denied that he had authorized torture. “We do not torture,” the president said on many occasions, even issuing a statement to the United Nations on June 26, 2004, reaffirming  the commitment  to the elimination  of torture  worldwide.     But he must have realized that  torture  and cruel and inhuman  treatment could not  be hidden forever. While still in office, the president secured legal opinions purporting to allow torture and pushed through provisions to undermine the War Crimes Act and render it largely useless in affixing criminally responsibility against him.

Torture and cruel and inhuman treatment violate solemn treaties, as well as our own laws. The horrid pictures of prisoner abuse at Abu Ghraib, according to various testimonies, encouraged jihad against U.S. soldiers, endangering their lives. As a former  district  attorney,  I know that  highly trained,  experienced  investigators  can frequently  obtain  vital information without ever lifting a finger against the person being questioned.

As for starting a war by lies and deception, no more serious legal violations can be envisioned—thousands of lives lost, expenditures  of a trillion dollars, and the violation of our treaty obligations  against fighting an un- provoked war.

The devastation caused by the Bush administration is so vast that, in some ways, we have been numbed to its extent and corrosiveness.  Now that they are out of office, reasserting the rule of law and holding President Bush and Vice President Cheney answerable, where possible, is a necessary task.

Active steps are  needed  to  investigate  the  misconduct  of the  Bush- Cheney  administration: a special prosecutor  to investigate possible illegal actions and bring charges where appropriate;  a truth  commission to make sure that all of the facts and actions are established for a historical record; new legislation by Congress to patch holes in the law to prevent repetition of the same behavior; citizen action to demand that our constitutional standards be upheld.

Prosecution is by no means a minor matter.  Prosecutors must analyze the evidence and the law, persuade a grand jury to return an indictment, try the case before a jury. The evidence must meet each element of the crime in the statute and overcome defenses that those charged may assert. Prosecution isn’t something to be approached lightly—but it is critical to serious accountability.

The argument that conducting investigations would tear the country apart is not true, but in any case is no reason to desist from requiring accountability. America is certainly strong enough to weather a fair and professional investigation of presidential criminality.  During the Watergate inquiry, the same argument that the country would somehow suffer harm turned out to be untrue.

Our nation prohibits titles of nobility precisely in order to guard against the formation of a legal hierarchy in our society. Presidents are not kings; they are ordinary human beings, subject to ordinary temptations, who must be treated like any other persons if they have broken the law. We do not have an aristocracy of former government officials with immunity.

The danger to our democracy is seen most starkly when former Bush administration officials trumpet their crimes, proudly and publicly, with- out any fear that they will be held to account. As with any crime that goes unprosecuted, the failure to take action against a former president who has committed crimes stands as an indictment of the society that permits the impunity.  The  failure to prosecute  trivializes the acts constituting the crime, suggesting,  in the case of President  Bush, that  torture, disappearance, cruel and inhuman  treatment, abrogation  of our  treaties,  violation of our laws on privacy, deception  of the Congress,  and subversion of the constitutional checks on war making are minor matters, easily overlooked. It means rejecting what used to be regarded as core American values, and even worse, sends a clear signal to future presidents that they may act with similar disregard for the law.