By Dan Kennedy • The press, politics, technology, culture and other passions

How to avoid prosecuting Bush and Cheney

Prosecuting George W. Bush, Dick Cheney and others for torture-related war crimes would be madness, and President Obama clearly doesn’t want to do it. But torture is serious business. What should we do?

At, civil-liberties lawyer Harvey Silverglate shows us the way out.

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  1. ron-newman

    Silverglate’s article doesn’t address the possibility of letting them be extradited to a jurisdiction such as the international court in The Hague, where they could be tried for war crimes.

  2. Dan Kennedy

    I think I can answer for Harvey. Extraditing them would be the same as prosecuting them … we shouldn’t go there.However, if, say, Dick Cheney happens to land in a country that is inclined to take him into custody, well, these things happen.

  3. Jack

    Appalled by the acts of the former administration, many Americans would surely celebrate the indictments of Bush, Cheney, Rove, Gonzales, and others for their crimes against humanity. Regrettably, prosecution would be difficult, protracted, expensive, distracting, divisive, and probably futile. But there’s another means to condemn the actions of Bush, et al and ensure that the historical record clearly and unambiguously documents their abuses of power. Paradoxically, a “conviction” could be obtained by granting blanket pardons. President Obama could take a cue from the Bush Doctrine and launch a preemptive strike — full pardons for the whole cadre! Executed properly, the pardons could become the definitive accounting of Bush’s eight-year reign, citing with excruciating detail the nefarious acts that characterized this administration, creating an indelible stain on the Bush record that no amount of historical revisionism could erase.Maybe it’s time to start a pardon petition?-JackB

  4. O-FISH-L

    Is this the same lunatic Harvey Silverglate who called into WBZ last week saying that the release of six or so terrorists couldn’t harm the United States, apparently unaware that all four Sept. 11 flights had 5 terrorists or less on board?Brilliant, retired New Bedford Police Captain Raymond Eugenio has taught criminal law to just about every municipal police officer working in eastern Mass. If I remember Ray’s teaching correctly, probable cause, needed for any criminal prosecution, is “something more than mere suspicion, but less than evidence to justify a conviction, that would warrant a prudent and cautious person to conclude that the accused is guilty of the crime charged.”I’m not sure what you’re charging them with, Dan, but I don’t see probable cause to charge Bush or Cheney with any crime. Obama, a lawyer and a savvy politician, is smart to keep the moonbats at bay.

  5. zadig

    First of all, a preliminary investigation should be held into all activities of the previous administration. *IF* any of them are found to have broken the law, our CEO president and his sidekick included, they should be prosecuted. Nobody is above the law in this country. If they are, we’ve lost what we were founded on. And there is certainly enough circumstantial evidence to warrant a top-to-bottom investigation.And Fish, if you believe that any of the Guantanamo detainees could possibly get back into this country to work harm, you’re both naive and showing an alarming lack of faith in the previous administrations famed Homeland Security efforts. Tsk tsk.Honestly, do you think that hijacking planes to use as weapons could ever work again? No bunch of passengers would ever allow it, knowing what was in store for them if they did.

  6. O-FISH-L

    Zadig, Bush’s low popularity was the result of, among other things his lax border enforcement. Could released Gitmo terrorists gain access to this country? Absolutely.As for the Sept. 11th attacks, it was both the economy of force and the method of attack that proved successful for al-Qaeda. My guess is that the fortified cockpits, more so than passenger vigilism, would discourage future use of an airliner as weapon. That said, I’m sure the next attack will only have a minimal number of conspirators, whatever the method. Hopefully, none will be Gitmo ex pats.

  7. Tom-Tom

    >>Zadig, Bush's low popularity was the result of, among other things his lax border enforcement. Could released Gitmo terrorists gain access to this country? Absolutely.<<Bush used all his political capital keeping the country safe.

  8. cavard

    I think prosecuting Bush & Cheney is a tough decision to make and it's no wonder Obama struggles whether or not to proceed with it. I think it's necessary. There is documentary evidence out there that they signed off on torture and like investigations into impeachment, the country needs to go through with it. No future American leader should EVER get away with what Bush & Cheney did. Putting them on trial whether there's evidence or not needs to happen. I agree with the author that "this subject requires total intellectual honesty and political consistency, rather than the kind of thinking that says that it's okay to burn and pillage your way through the legal system in order to get your enemies." However many activists I've come to know working on Cheney-Bush indictment efforts are not out to even the score to get back at their enemies. They're defending the constitution and the rule of law from abuses of power that Congress is supposed to be doing in the first place (all the more reason we should embed reporters with activists, not just U.S. soliders).If Congress and Obama won't do it, who will? As far as I know John Dean supports it. As does Vincent Bugliosi. Both of them are reasonable people and Bugliosi has successfully won 16 out of 17 capital murder cases. He could pull this off, contrary to what Silvergate says.

  9. O'Reilly

    I don’t think our nation can survive a two-tier system of justice where the powerful get a wink and a nod and the average Joe languishes in jail for long prison sentences. If there is probable cause that Bush and Cheney or Rumsfeld have engaged in criminal conduct say for example wiretapping the entire US population (before 9/11) or for torturing Iraqi detainees in Abu Grhaib, CIA black sites and Gitmo then they should receive a fair trial, not a show trial like the ones on Gitmo but a real trail with the best lawyers. What many people fail to appreciate is the recklessness with which Cheney pursued executive power including a consistent effort to disregard the law and use it to provide cover. When OLC can be gamed into turning up into down and black into white, which is what Yoo did, then we have a lawless presidency that does not rsemble the powers deliniated in the Constitution. We have a Constitutional crisis and it isn’t over just becuase Bush has returned to Dallas. Equal protection under tha law has to mean something in our nation of laws or we are done. The human rights treaty that Reagan signed and the Seante ratified is binding law. It prohibits torture and it requires that the nation whose government authorized the torture initiate prosecution. Faithfully executing the law is a Constitutional obligation of the president. The terms of the Reagan treaty only further emphasize that. Investigate now. Collect evidence. In in two years there is a case try it then.

  10. Daniel

    Why would prosecuting them be “madness”? I think Justice itself demands it.

  11. Bill Baar

    Ex Chicago Cop John Burge has been indicted by Patrick Fitzgerald for torture in Chicago’s PD spanning 15 years. Go after Bush on torture and you’d have to go after most of Chicago’s Liberal Democrats. Watch Obama buy into that… … watch and see if Guv Blagojevitch pardon’s Burge’s victims.It’s a parrallel we watch in Chicago. Obama’s not going to want to hit Chicago patrons with it.

  12. O'Reilly

    ill, You seem to think Burge’s torture of criminal suspects was ordered by his superiors… did they even have knowledge of it? If so, then yes the complicity is a crime. If you think Fitz won’t pursue it you’re wrong. (Think it through) DOJ and USA Attorneys decide these things without political interference.

  13. O'Reilly

    Watch this more comprehensive review of the issues.

  14. cavard

    Daniel, that’s the same thought I had. Since when did fighting for justice become “madness?” Madness to whom? No president or vice-president should ever get away with the things they did, especially for the ideals we promote in our schools and around the world. If one leader gets away with what they did, who’s to say their actions won’t be copied elsewhere? They’ve opened to door to preemptive strike diplomacy. You know other countries are going to follow suit some day. If Bush and Cheney get away with the things they authorized, then others may certainly follow.My favorite argument is there’s too many things to get done and a trial will prevent Obama from doing his work. Nonsense. It’s the same excuses I heard not to conduct investigations into impeachment. During Nixon’s impeachment, Congress was able to pass the Endangered Species Act, a hike in the minimum wage, and several other pieces of sound legislation. Who’s to say Congress can’t get their work done and put a president and vice-president on trial? So many assumptions we make to talk ourselves out of the things that need to be done. Calling it “madness” is avoiding the problem. We just can’t hope it will all blow over. Something needs to be done. Justice can’t fix itself.

  15. Mark

    I wasn’t convinced of this until just now, but history is going to remember George W. Bush kindly. The fact that he batted off these far left-wing loons and managed to keep our country safe all these years is a miracle.

  16. Jack

    Mark,George Bush “managed to keep our country safe”?! You seem to conveniently forget that the most devastating terror attack ever on U.S. soil occurred during Bush’s watch. Remember the infamous intelligence memo ignored by the Bush team? “Bin Laden Determined to Strike U.S.”

  17. NewsHound

    There is no better choice than to leave this most horrible can of worms in the can.

  18. bostonmediawatch

    What the torture memos did is put the legal horse before the legal cart. Nixon forgot to do that.FROST: So what in a sense, you’re saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it’s in the best interests of the nation or something, and do something illegal.NIXON: Well, when the president does it that means that it is not illegal.FROST: By definition.NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they’re in an impossible position.==================CHENEY: Woo, we need a memo that says the Geneva Conventions and War Crimes Act don’t apply to Al Qaeda and Taliban members. Don’t define what “members” means.YOO: It’s “Yoo”, sir. OK.===================Besides the legalities, a sitting President isn’t likely to steer DOJ to prosecute a former President – he needs to keep his own options open.

  19. Ani

    If Silverglate is premising his position on guessing what defenses will be raised or what a jury will or will not do, it sounds to me as if he’s getting ahead of himself. If the system allows for an investigation in this situation, an investigation should begin, and if that investigation leads to the next step, that next step should be taken, and so on — the process should be allowed to play itself out to its own conclusion.

  20. zadig

    Two domestic terror attacks, Mark: 9/11 and the still-unsatisfactorily-investigated anthrax attacks that followed. And that’s not even bringing up the attacks on US interests and allies abroad that Bush somehow failed to prevent.Investigate whether crimes occurred, then prosecute if they did. The Republicans didn’t think prosecuting a sitting president where no crimes had occurred was too big a can of worms to open; why is prosecuting a former president et al so ridiculous? Oh, that’s right: it’s a Republican this time.

  21. Ani

    I just wanted to add to what I said above. If Silverglate is advocating against an overzealous pursuit of prosecuting people in the previous administration, I agree that that dynamic just perpetuates dysfunction. But a dispassionate investigation of the matter is also possible.

  22. Dan Kennedy

    Nicholas Kristof today suggests an investigative commission headed by two Republicans, John McCain and Brent Scowcroft.Not a bad idea, though I would choose someone other than Scowcroft, who is personally close to the Bush family. (To be sure there is voluminous evidence that he holds GWB in utter contempt.)

  23. Bill H.

    Regardless of what should happen, trying Bush administration officials is not going to happen because most people in the country would not stand for it, and that includes the president and a majority of both houses of Congress. That would be a far more divisive exercise than anything that ever surrounded Nixon, and it would be fruitless and injurious in the end. First, Americans tend to be a forgiving people, and second, too many people think that Bush’s excesses kept us “safe” and they will continue to think that despite arguments to the contrary.However, while Bush, Cheney, et. al., will escape prosecution in our judicial system, they will never outrun the judgment of history, and that will be both grim and unforgiving. (And, as Dan said, if Cheney should get off the airplane in the wrong country, that’s fine too.)

  24. O-FISH-L

    I’m now convinced that there must be something in that Essex County water that causes Dan, much like John Hathorne 300 odd years ago, to prosecute the innocent on groundless charges.What crimes are we charging Bush and Cheney with anyway, Dan? Or does simply being a two-term Republican mean you’re guilty?

  25. Dan Kennedy

    Fish: There are times when I have to wonder if even you are kidding. Sanctioning torture, Fish, including activities that got Japanese officials executed after World War II.

  26. Peter Porcupine

    DK – two questions.Is three any statute of limitations here? Would we be treated to potential investigations of any Clinton-supervised use of waterboarding, etc., in Bosnia? Because I find it hard to believe that was INVENTED in the last 8 years…And – what if a Hague jury took into account actual ‘community standards’ of the treatment of prisoners an detainees (like beheading for the cameras) and concluded Bush et al were innocent?

  27. Dan Kennedy

    PP: Invented in the past eight years? Come on, man. American soldiers used waterboarding during the Spanish-American War, and were punished severely for it.Clinton in Bosnia? I have never known you to just make shit up, and I’d appreciate your not starting now.

  28. Ani

    Why are some people so afraid to see what would happen if a neutral group of people looked at what was authorized by Bush and Cheney with a view to whether any laws were broken? We do that all the time, don’t we, with respect to other individuals?

  29. Bill Baar

    O’Reilly…google around… Mayor Daley was given reports by Dick Devine years ago on it. Read the Amensty International coverage… Burge victims families in Chicago pay very close attention to the Admins words on torture too and will turn those on the City. Obama won’t go there aganst Daley. The real question is can enemy combatants captured fighting outside the rules of the Geneva Convention be asked for anything besides their Name, Rank, and Serial Number?If the answer to that is YES, than can they be coercied to give more, and if YES how much coercion…Credit Bush for at least facing this question.Obama won’t. A friend of mine who trained some of the early Iraqi Army Divisions told me he’d take any prisoners and the local Shiek would sign for the Iraqis. That was fine. They’d not come back to the battle 99% of his experience. He was stuck with the foreigner because the Iraqis would just shoot them.My guess with Obama’s rules, those future prisoners will end up getting shot by the angry locals instead of brought to US prisons and confronting the Administration with messy legal issues.That’s pretty much what happened with Clinton and I suspect we’re headed back to that…

  30. NewsHound

    There is so much discussion on this topic on this blog and much of it makes sense. This is a horrible violation to us as U. S. Citizens who treasure our values. I can hardly stand the thought of torture on anybody and I certainly think Cheney and Bush overreacted, maybe in good faith, but most likely in violation to us as a modern citizenry. Torture, to me, puts our military people at horrible danger should any be captured – and most likely has had ill effects in some situations since 2003.Maybe a little waterboarding on Dick Cheney to find out if he was really honest with us about a few things, like Scooter Libby – that is the extent of any torture I can think is acceptable.I’m happy so far with President Obama and his decisions regarding this issue. I think we have an honorable president who understands the Constitution very well, and I’ll trust his judgment on this. In which case, Dick will not be waterboarded.

  31. Ani

    I confess ignorance about who has the authority to ask for an investigation. That is, would it have to be President Obama?

  32. O-FISH-L

    Having a modicum of training in the practice, I am willing to go and handcuff Bush in Texas and Cheney in Wyoming, using one set of cuffs, if the Dems here are willing to face the consequenses when it’s revealed which terrorists were arrested, what they had planned to inflict on us. When the general public sees who you are defending, it will be a boon for Republican recruitment. I repeat, Obama is sharp to avoid this trap. You people should trust this clown you’ve put forth.

  33. Dan Kennedy

    Ani: There are various routes you could go, but the two most straightforward would be a criminal investigation led by the Justice Department or a congressional investigation with the power of subpoena, but not the power to lock anyone up.I really like Kristof’s idea. Lord knows we have investigations about everything else. Torture seems rather more important than most.

  34. Ani

    I had in mind, in contrast to Kristof’s idea, an investigation led and staffed by people not as high profile or political, so as to try to avoid having it become too charged an atmosphere. I almost think a boring thorough investigation by competent professionals without household names might produce results most creditable to the widest audience.

  35. Rick in Duxbury

    Great idea. Previous Congressional investigations have been SO productive. Talk about flights of fancy…..

  36. O'Reilly

    What’s wrong with a DOJ investigation? The president can keep the lid on the can if he chooses. How much have you heard about the Mukasey’s DOJ investigation into WH politicization of Justice…

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