Jonathan P. Baird

This is an important book for anyone concerned about preservation of the rule of law. It has not received the public attention it deserves. Former Congresswoman Elizabeth Holtzman, who served on the House Judiciary Committee during Watergate, persuasively argues the case for why both President George W. Bush and Vice President Dick Cheney violated multiple federal and international laws during their tenure in office.

Holtzman explores the lies that led to the war in Iraq, the illegal wiretapping of American citizens, and the open flaunting of anti-torture laws. She shows not only that Bush and Cheney violated law but that they also took active steps to insulate themselves from liability since they knew they were way over the line.

While President Obama and Attorney General Holder have essentially given them a pass and they have wanted to move on, the danger of lack of accountability is becoming more obvious. Iraq now makes Iran possible. Even after ten years of a pointless war in Iraq, a war premised on an orchestrated campaign of untruths, we face another possibility of war based on an alleged nuclear threat from Iran.

You would think weak claims of a distant nuclear threat would be held up to a higher level of scrutiny than has been the case so far. After all, we were just snookered with the war in Iraq, a war with enormous human and economic costs. Yet we see the same hawkish saber-rattling like Iraq never happened. To his credit, President Obama did recently speak to the too cavalier attitude toward war which has been widespread.

The principle that the high and mighty should be held to the same standard of accountability as everyone else underlies Holtzman’s book. Due to some statute of limitations, Holtzman brings an urgency to the case she makes. There is a race against the clock for some of the crimes Holtzman addresses.

Let me outline some highlights from the case Holtzman makes:

Regarding the lies that led to starting a war in Iraq, Holtzman looks at fraud laws. She cites the False Statements Accountability Act of 1996 (18 USC 1001) which makes it a crime to submit false information to Congress in particular situations. Holtzman argues that Bush and Cheney manufactured a case for the invasion of Iraq that was based on complete falsehoods. The two major falsehoods were the existence of weapons of mass destruction and the link between Sadaam Hussein and Al Qaeda.

Holtzman also looks at 18 USC 371, a provision of the federal criminal code that makes it a federal crime to conspire to defraud the United States government through “deceit, craft, trickery or dishonest means”.

She does anticipate the likely defenses by Bush and Cheney. They might say they relied on bad intelligence or that Congress agreed with them or that some lawyers told them what they were doing was okay. Holtzman shows that Bush and Cheney had an extensive marketing plan to sell the war in Iraq. They systematically misrepresented the threat posed by Iraq’s nuclear, chemical , and biological weapons programs. Bush did this both in speeches to Congress (especially the 2003 State of the Union address) and in written submissions to Congress.

Holtzman writes:

“The predetermination of President Bush and Vice-President Cheney to embroil the country in war in Iraq and to do so under a cloak of lies and deceit is the original flaw of the Bush Administration. It led to a vicious and tangled web of secrecy, suppression of evidence, obstruction of justice, misguided policy, imperial behavior and the ravaging of people, property, privacy and our own values.” (p. 36)

The second area of constitutional concern Holtzman raises is the use of warrantless wiretaps against American citizens. Under the Foreign Intelligence Surveillance Act of 1978 (FISA), the government needs to apply for a FISA warrant if it plans to subject American citizens to electronic surveillance. There is a special FISA Court for that. The burden on the government is quite a bit less than in other typical criminal situations. The government only has to show the surveillance would serve some intelligence or counterintelligence purpose.

After 9/11, President Bush ordered the National Security Agency (NSA) to wiretap solely on his say-so. According to Holtzman, Bush did this 43 times in violation of FISA law. He never bothered to get warrants. There is also evidence that the Bush warrantless surveillance involved wholesale monitoring of communication going through routers in the United States. However, Bush and Cheney blocked an inquiry into the program by the Office of Professional Responsibility in the Justice Department. Also in 2008 Bush and Cheney promoted a FISA Amendments Act that allowed surveillance practices Bush had previously illegally authorized. They weakened existing law, confusing requirements and giving themselves cover.

While we do not know much about the data-mining operation undertaken by the Bush Administration (because they have done everything they could to hide it), we do know that the NSA was routinely examining large volumes of Americans’ email messages without any court warrant. Such random fishing is at the least constitutionally suspect.

It should be noted there is  a 5 year statute of limitation for criminal violation of FISA. The statute of limitation runs from the date of the last overt act in furtherance of illegal wiretapping. That is why I mentioned the race against the clock. Given the lack of likelihood anyone in the government will investigate, Bush and Cheney will probably be able run out the clock on violation of FISA.

The last area that Holtzman addresses is the crime of torture. She writes:

“Committing or authorizing torture is a crime. It is against the law in the United States. It is against international treaties adopted and ratified by the United States. Torture is prohibited up and down the chain of command – it cannot be authorized, condoned, or implemented; when reported, it must be investigated and prosecuted. Cruel, inhuman and degrading treatment – reprehensible actions that are not as severe as torture – is also prohibited by international law. ” (p.70)

Holtzman shows how opposed the Founding Fathers were to torture. She points to both the Fifth Amendment injunction that no person “shall be compelled in any criminal case to be a witness against himself”  and the Eighth Amendment prohibition against the infliction of “cruel and unusual punishments”. She cites both the Geneva Convention and the Convention Against Torture.

Her discussion of the intrigues and the efforts by Bush and Cheney to evade the law are fascinating. There is no doubt  Bush and Cheney are on record touting waterboarding and “enhanced interrogation techniques” (ie torture) . They used lawyer-tools (e.g. John Yoo) to create after-the-fact justifications for torture. To this day, much remains enshrouded in secrecy. Abu Ghraib was the window but much about the tortures, renditions, black sites, disappearances, and unexplained homicides remain hidden from the public.

While waging a war on false grounds is a huge crime in itself, Bush and Cheney’s violation of torture law is probably the creepiest aspect of their time in office. They also tried to cover up here as well by their efforts to weaken the War Crimes Act in 2006. They changed key definitions of torture and they made those changes retroactive as well. They have put the United States out of compliance with the Geneva Convention.

Holtzman says that in spite of the effort to scuttle torture law, Bush and Cheney are still vulnerable under 18 USC 2340-2340A which makes it a federal crime for anyone acting in a U.S. government capacity to commit torture or to conspire to do so. The law does apply to torture committed outside the United States. The 1994 law came about in conjunction with Congress’s ratification of the International Convention Against Torture. Congress ratified this law which Holtzman writes allows for no exception in its ban against torture.

There is much damning evidence already out there. Human rights organizations, the International Committee of the Red Cross, the ACLU and many experts and journalists like Karen Greenberg, Jane Mayer, Seymour Hersh and Philippe Sands have accumulated a wealth of information about the torture. Incredibly, Both Bush and Cheney have incriminated themselves by proudly and repeatedly claiming credit for waterboarding and the other enhanced techniques.

Holtzman enumerates possible ideas for achieving some accountability. She raises both the concept of a special prosecutor and also a truth commission a la South Africa with apartheid. She also suggests restoring the War Crimes Act, reclaiming protections against unchecked surveillance, abolishing statute of limitations for war crimes and torture and narrowing state secret privilege.

When talking with friends about this book, the response has invariably been the impossibility of any action being taken against a former president and vice-president. People do not argue the merits of the legal case – more often than not, they concede that. I think history shows that it often takes a long time for any type of accountability but accountability could come about in many ways. Civil litigation by victims or foreign prosecutions have already happened. Other nations, also signatories to the Convention Against Torture, might be less reticent to prosecute.

Holtzman says it took the Russian parliament 60 years to acknowledge Stalin’s guilt for the massacre of 20,000 Polish officers in the Katyn Forest. It took 25 years for justice to begin to catch up to the Chilean dictator, General Augusto Pinochet. There are still people pursuing remaining Nazi war criminals.

The danger in lack of accountability is the risk that history will repeat itself. Nothing gets learned. By not holding Bush and Cheney accountable for their crimes, we pave the way for future Bush and Cheneys and worse. Holtzman deserves credit for bravely and honestly looking at our history. Her book has the virtues of being a good read, legally sophisticated, and very well-argued.