By David Swanson, cross-posted from War Is A Crime.org
Holtzman's new book, coauthored with Cynthia Cooper, is called
"Cheating Justice: How Bush and Cheney Attacked the Rule of Law and
Plotted to Avoid Prosecution -- and What We Can Do About It." Holtzman
begins by recalling how widespread and mainstream was the speculation at
the end of the Bush nightmare that Bush would pardon himself and his
underlings. The debate was over exactly how he would do it. And then
he didn't do it at all.
Holtzman ends her book by pointing out that legal accountability can
come after many years, as in the case of various Nazis, or of Chilean
dictator Augusto Pinochet, or of the murderers of civil rights activists
including Medgar Evers.
In between, for the bulk of the book, Holtzman, a former district
attorney, lays out the prospects for a prosecution of Bush and others on
charges of lying to Congress about the grounds for war, wiretapping
Americans, and conspiring to torture. This is an excellent sampling of
the many horrors on the list of Bush's abuses, and clearly the three
areas in which Holtzman believes a prosecution would stand the best
chance of success. Her analysis of the war lies parallels and builds on
that of Elizabeth de la Vega, another former prosecutor who has written
on the topic. Holtzman adds an analysis of the steps Bush took to
protect himself from prosecution in this and each other area. She also
examines his possible legal defenses, finding some of them strong and
others easily overcome.
In each area Holtzman finds charges that would stick, if our laws
were enforced. She also finds charges that would have stuck, had the
statute of limitations not elapsed, and others for which a couple of
years yet remain. Holtzman believes charges for conspiring to defraud
the government with war lies could be brought until January 20, 2014.
She also believes that charges for violation of FISA could be brought
until that same date, pointing out that changes made to the law have not
provided immunity for prior violations of what the law used to be, and
that immunity has been granted from civil suits but not from criminal
prosecution. Charges of torture, Holtzman concludes, could be brought
at any time in the future.
Holtzman argues for lengthening the statutes of limitations for grave
abuses of power, for creating a special prosecutor, restoring the War
Crimes Act, reclaiming protection against unchecked surveillance,
recovering missing records, pursuing civil cases, impeaching torture
lawyer turned judge Jay Bybee, and looking abroad for hope and change.
She sees some chance of the International Criminal Court pursuing
charges of torture.
This book is an ideal guide for a prosecutor with nerve and decency,
although we haven't found one in this country in the past several
years. Other than Kurt Daims who is running for the office of Town
Grand Juror in Brattleboro, Vermont, which voted to direct its police to
indict Bush and Cheney four years ago, I'm not aware of any prosecutors
in the United States with plans to pursue this kind of justice.
Glaringly absent from Holtzman's book, despite its 2012 publication
date, is any significant mention of the approach that President Obama
has taken. There's not one word about "looking forward, not backward,"
not even so much as one tangential reference to Obama's public
instructions to Attorney General Eric Holder, no analysis of the intense
effort that the Justice Department, State Department, and White House
have pursued to protect Bush and Cheney from accountability, no mention
of the ways in which Obama has continued a similar pattern of
criminality -- a state of affairs which, of course, might explain his
reluctance to allow the enforcement of laws against his predecessor.
I don't think it's an unfair criticism to object that a book has left
out a large but intimately related topic, one that apears to have been
carefully avoided. Partisan prosecution of crimes and non-crimes by
Republicans under President Clinton has been aggravated by Republican
defensiveness and Democratic spinelessness under Bush. But it is the
Democratic switch to defending all presidential wrongdoing since 2008
that has put the largest nails into the coffin of legitimate rule by law
in this country. Bush's crimes have been legitimized. Obama has
claimed the power to torture as he deems necessary, the power to
imprison and rendition as he sees fit, the power to murder any human
being including U.S. citizens and children as he and he alone declares
necessary, and powers of state secrecy that Nixon and Cheney never
dreamed of. While Bush lied the Congress into a war that a reasonably
intelligent 8 year old could have seen through, Obama has made the
launching of wars a matter for the president alone. And that's just
fine with Democrats. Surely Holtzman is aware that this partisanship is
a cancer, that it has ruined the power of impeachment and done away
with truly independent special prosecutors, and that the purpose of
accountability is to halt the ongoing acceptance of crime.
I have to quibble as well with Holtzman's lowballing of the Iraq war
death count by two orders of magnitude. I know everybody does it, but I
still find it grotesque.
And yet I have to strongly recommend that this book be read and
presented to every prosecutor in this country, including the seemingly
shameless Eric Holder. We've got 23 months.