Obama and Holder Must Prosecute War Crimes or Become Guilty of Them Himself

By Dave Lindorff

The dithering and ducking going on in the Obama White House and the Holder Justice Department over the crimes of the Bush administration are taking on a comic aspect.

On the one hand, we have President Obama assuring us that under his administration, there will be respect for the rule of law, and on the other hand we have this one-time constitutional law professor and his attorney general declaiming that there is no need for the appointment of a prosecutor to bring charges against the people in the last administration, in the CIA, in the National Security Agency and in the Defense Department and the military who clearly have broken the law in serious and felonious ways.

What gets silly is that America is either a nation of laws…or it isn’t. It is either a place where “nobody is above the law”…or it isn’t.

There is really no middle ground here.

The latest solid and incontrovertible evidence of outrageous and criminal behavior by the White House is the discovery—and the public release by the Obama administration—of documentary evidence that the CIA committed not just torture but willful obstruction of justice by destroying video tapes of some 92 interrogations of terrorism suspects and captives in the so-called Bush “War” on Terror. Plus the release of a stack of nine legal opinions by White House and Justice Department lawyers providing legal cover for torture, including executive orders from President Bush and directives from then Secretary of Defense Donald Rumsfeld authorizing torture.

We now know that those legal opinions were so blatantly illegal and simply designed to provide cover that the authors--former Deputy Assistant Attorney General John Yoo (now ensconsed in a tenured faculty position at the law school of UC Berkeley where he teaches, with a straight face, constitutional law, and writes a syndicated opinion column on similar topics), and his then boss, Jay Bybee, then Assistant Attorney General for the Office of White House Legal Counsel, and now an appeals court judge for the Ninth Circuit Federal Court of Appeals in San Francisco—had them classified, simply to hide them from public inspection. For those memos alone, Yoo should be fired from his teaching post and disbarred, while Bybee, who failed to mention his activities during his judicial confirmation hearings, should be impeached. That would just be for starters.

Setting aside the many other crimes of the Bush administration for a moment—the authorization of a massive warrantless electronic spying program on Americans, the use of military personnel to actively spy on groups engaged in lawful First Amendment activities, the lying about reasons for going to war in Iraq, etc.--the issue of officially sanctioned acts of torture by American forces, which we know occurred, is not just a crime under the US Criminal Code, which since 1996 has incorporated the Geneva Conventions specifically as US law. The planning and sanctioning of torture, as well as the covering up of torture, and the failure to punish torture are also crimes.

The Obama administration may, on the basis of whatever twisted political logic it is operating under, not want to appoint a prosecutor and indict the war criminals of the Bush administration. But this is not a question of whether or not to push for health care or labor law reform, where the Obama administration has a right to consider what the political pros and cons are of moving forward. Here, we’re talking about enforcing the law. There are no options but acting. Not only does a commitment to the rule of law require prosecution here, right up to the president and vice president. The failure to prosecute war criminals is in itself a crime, meaning that there is a narrow window of time to act before Obama himself, and his attorney general Eric Holder, will be open to charges that they too are war criminals.

If we don’t get a prosecution going of Bush administration officials responsible for war crimes, the day will come when not only will George W. Bush, Dick Cheney, Condoleezza Rice and Donald Rumsfeld be unable to travel abroad. Barack Obama and Eric Holder will also be confined to US soil.

To join the campaign to make the Obama Administration obey the law and prosecute war crimes by the last administration, go here.
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DAVE LINDORFF is a Philadelphia-based journalist. His latest book is “The Case for Impeachment” (St. Martin’s Press, 2006 and now available in signed collector’s edition hardcover or in paperback direct from the author). Order from ThisCantBeHappening.net, where you can also read other work by the author.