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Why There Must Be A Criminal Investigation of the Bush Administration

By Jack M. Balkin

There is a lot of debate about what the rule of law means. But everyone agrees, at a minimum, that it means the government is bound by the law, and that government officials are accountable to the law. The essence of the rule of law is that no one is above the law.

An already substantial and growing body of credible evidence (the latest here) suggests that high level officials in the Bush Administration directed actions that involved a violation of domestic and international laws prohibting torture. The International Committee of the Red Cross has concluded that we have tortured prisoners. Dick Cheney and John Yoo have openly stated that the Bush Administration ordered that selected prisoners be waterboarded. The CIA has destroyed 92 hours of tapes of interrogations.

This is all well known. Yet people who assert that there should be a criminal investigation of the Bush Administration are shouted down by the right, painted as leftist political extremists out for revenge. Even many liberals shy away from the prospect of a criminal investigation, opting instead for a truth commission, out of fear that the inevitable political backlash will destroy the Obama Administration.

Until recently, I was one of the latter, with no stomach for pursuing criminal actions against the Bush Administration. A criminal investigation into these matters strikes me as equivalent to walking to the lip of a volcanic crater ominously frothing with lava. There is a real possibility that our past President, Vice-President, Secretary of Defense, Director of the CIA, Secretary of State, Attorney General, and OLC lawyers, among others, engaged in criminal actions. Only a fanatic would embrace the prospect of opening this up to possible prosecution.

Now it appears we have no choice about the matter--not, anyway, if we are committed to the rule of law. Nixon's Watergate, Reagan's Iran-Contra, and Clinton's perjury, were all criminally investigated for this reason.

The only discernible difference here is that the illegal conduct at the highest levels of government, if proven true, might be worse in degree and extent than other recent examples. But that is an affirmative reason to investigate, not a reason to take a pass.

Those who suggest that such an investigation would be political have matters exactly upside-down: given the ample credible evidence that the law has been violated, it would be political to decide to not conduct a criminal investigation.

To avoid the appearance of politics, the criminal investigation should be run outside the Department of Justice (as in the case of Scooter Libby), and the prosecutor appointed to manage it should be a Republican. Many career prosecutors are committed to upholding the law.

This is gut check time for America and our commitment to the rule of law.

Full post as published by Balkinization on March 17, 2009 (boomark / email).