NEW YORK TIMES– To paraphrase Al Pacino in “Godfather III,” just when we thought we were out, the Bush mob keeps pulling us back in. And will keep doing so. No matter how hard President Obama tries to turn the page on the previous administration, he can’t. Until there is true transparency and true accountability, revelations of that unresolved eight-year nightmare will keep raining down drip by drip, disrupting the new administration’s high ambitions.

That’s why the president’s flip-flop on the release of detainee abuse photos — whatever his motivation — is a fool’s errand. The pictures will eventually emerge anyway, either because of leaks (if they haven’t started already) or because the federal appeals court decision upholding their release remains in force. And here’s a bet: These images will not prove the most shocking evidence of Bush administration sins still to come.

There are many dots yet to be connected, and not just on torture. This Sunday, GQ magazine is posting on its Web site an article adding new details to the ample dossier on how Donald Rumsfeld’s corrupt and incompetent Defense Department cost American lives and compromised national security. The piece is not the work of a partisan but the Texan journalist Robert Draper, author of “Dead Certain,” the 2007 Bush biography that had the blessing (and cooperation) of the former president and his top brass. It draws on interviews with more than a dozen high-level Bush loyalists.

Draper reports that Rumsfeld’s monomaniacal determination to protect his Pentagon turf led him to hobble and antagonize America’s most willing allies in Iraq, Britain and Australia, and even to undermine his own soldiers. But Draper’s biggest find is a collection of daily cover sheets that Rumsfeld approved for the Secretary of Defense Worldwide Intelligence Update, a highly classified digest prepared for a tiny audience, including the president, and often delivered by hand to the White House by the defense secretary himself. These cover sheets greeted Bush each day with triumphal color photos of the war headlined by biblical quotations. GQ is posting 11 of them, and they are seriously creepy.

Take the one dated April 3, 2003, two weeks into the invasion, just as Shock and Awe hit its first potholes. Two days earlier, on April 1, a panicky Pentagon had begun spreading its hyped, fictional account of the rescue of Pvt. Jessica Lynch to distract from troubling news of setbacks. On April 2, Gen. Joseph Hoar, the commander in chief of the United States Central Command from 1991-94, had declared on the Times Op-Ed page that Rumsfeld had sent too few troops to Iraq. And so the Worldwide Intelligence Update for April 3 bullied Bush with Joshua 1:9: “Have I not commanded you? Be strong and courageous. Do not be terrified; do not be discouraged, for the LORD your God will be with you wherever you go.” (Including, as it happened, into a quagmire.)

Read more at NEW YORK TIMES.

© NY TIMES 2009

TRUTHOUT– Since he took office, President Obama has instituted many changes that break with the policies of the Bush administration. The new president has ordered that no government agency will be allowed to torture, that the U.S. prison at Guantánamo will be shuttered, and that the CIA’s secret black sites will be closed down. But Obama is non-committal when asked whether he will seek investigation and prosecution of Bush officials who broke the law.

“My view is also that nobody’s above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen,” Obama said. “But,” he added, “generally speaking, I’m more interested in looking forward than I am in looking backwards.” Obama fears that holding Team Bush to account will risk alienating Republicans whom he still seeks to win over.

Obama may be off the hook, at least with respect to investigating the lawyers who advised the White House on how to torture and get away with it. The Office of Professional Responsibility (OPR) has written a draft report that apparently excoriates former Justice Department lawyers John Yoo and Jay Bybee, authors of the infamous torture memos, according to Newsweek’s Michael Isikoff.

OPR can report these lawyers to their state bar associations for possible discipline, or even refer them for criminal investigation. Obama doesn’t have to initiate investigations; the OPR has already launched them, on Bush’s watch.

The smoking gun that may incriminate George W. Bush, Dick Cheney, et al., is the email traffic that passed between the lawyers and the White House. Isikoff revealed the existence of these emails on The Rachel Maddow Show. Some maintain that Bush officials are innocent because they relied in good faith on legal advice from their lawyers. But if the president and vice president told the lawyers to manipulate the law to allow them to commit torture, then that defense won’t fly.

A bipartisan report of the Senate Armed Services Committee found that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

Cheney recently admitted to authorizing waterboarding, which has long been considered torture under U.S. law. Donald Rumsfeld, Condoleezza Rice, George Tenet, Colin Powell, and John Ashcroft met with Cheney in the White House basement and authorized harsh interrogation techniques, including waterboarding, according to an ABC News report. When asked, Bush said he knew about it and approved.

John Yoo wrote in a Wall Street Journal oped that Bush “could even authorize waterboarding, which he did three times in the years after 9/11.”

A representative of the Justice Department promised that OPR’s report would be released sometime last November. But Bush’s attorney general Michael Mukasey objected to the draft. A final version will be presented to Attorney General Eric Holder. The administration will then have to decide whether to make it, and the emails, public and then how to proceed.

When the United States ratified the Convention Against Torture, we promised to extradite or prosecute those who commit, or are complicit in the commission, of torture. We have two federal criminal statutes for torture prosecutions – the Torture Statute and the War Crimes Act (torture is considered a war crime under U.S. law). The Torture Convention is unequivocal: nothing, including a state of war, can be invoked as a justification for torture.

Yoo redefined torture much more narrowly than U.S. law provides, and counseled the White House that it could evade prosecution under the War Crimes Act by claiming self-defense or necessity. Yoo knew or should have known of the Torture Convention’s absolute prohibition of torture.

There is precedent for holding lawyers criminally liable for giving legally erroneous advice that resulted in great physical or mental harm or death. In U.S. v. Altstoetter, Nazi lawyers were convicted of war crimes and crimes against humanity for advising Hitler on how to “legally” disappear political suspects to special detention camps.

Almost two-thirds of respondents to a USA Today/Gallup Poll favor investigations of the Bush team for torture and warrantless wiretapping. Nearly four in 10 favor criminal investigations. Cong. John Conyers has introduced legislation to establish a National Commission on Presidential War Powers and Civil Liberties. Sen. Patrick Leahy advocates for a Truth and Reconciliation Commission; but this is insufficient. TRC’s are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.

Attorney General Eric Holder should appoint a Special Prosecutor to investigate and prosecute high Bush officials including lawyers like John Yoo who gave them “legal” cover. Obama is correct when he said that no one is above the law. Accountability is critical to ensuring that our leaders never again torture and abuse people.

Written by Marjorie Cohn, President of the National Lawyers Guild

© TRUTHOUT 2009