Questions have been raised as to whether senior officials, including Bush, could be prosecuted for approving torture. ThinkProgress discussed the issue with The New York Times’ Eric Lichtblau and Jeffrey Rosen, law professor at George Washington University. Lichtblau won the Pullitzer Prize for his December 2005 story breaking the news that Bush was illegally spying on Americans after 9/11. As legal affairs editor of The New Republic, Rosen is considered “the nation’s most widely read and influential legal commentator.”
Discussing the potential for criminal prosecution against senior advisers, Lichtblau argued that a more probable scenario is that low-level officers who executed the interrogation orders face prosecution:
I certainly don’t think it’s likely that you would see international war crimes or, even in a Democratic administration, criminal prosecutions. … I think more likely, if you’re looking at criminal action, the more likely scenario is against the low level case officers who may have actually been carrying out interrogations and using severe interrogation tactics bordering on torture. … If that could be established or of course we have now the destruction of the CIA tapes, and that cover-up could very well lead to, conceivably, I should say, lead to criminal action if it were found that that were done to withhold evidence from the courts or 9/11 Commission.
Rosen came to similar conclusions, but urged Congress to more strongly assert its constitutional oversight role to “haul” Vice President Cheney and chief of Staff David Addington to testify:
Congressional oversight, congressional hearings, censure, political pressure. … The time is ticking away, and they have the ability to haul these people up and ask Cheney and Addington what they were thinking when they endorsed these programs. That’s the appropriate remedy — not some hope of criminal prosecution.
Observing Congress’s aggressive and effective oversight during the U.S. Attorney scandal, Rosen argued that the ongoing debate over FISA and surveillance is lacking similar oversight, as Congress has not firmly drawn the line in the sand:
When it comes to oversight of FISA, both to refining the law in ways that would protect liberty and security and also holding Addington and Cheney accountable for having arguably broken it, they have not done so. … By contrast, Democrats are pretty undecided about exactly where the line should be on FISA and in fact many of them seem inclined to give the Administration far more than many in the civil liberties community think is appropriate.
Lichtblau has published a book, Bush’s Law: The Remaking Of American Justice, which details the development of the administration’s warrantless wiretapping program and the White House’s attempts to thwart Lichtblau along the way. Read an excerpt here.