Emily Bazelon chatted online with readers about this project. Read the transcript.
The recent release of Jane Mayer's book The Dark Side revealed that a secret report by the International Committee of the Red Cross determined "categorically" that the CIA used torture, as defined by American and international law, in questioning al-Qaida suspect Abu Zubaydah. The question of criminal liability for Bush-administration officials has since been in the news. It's also getting play because retired Gen. Antonio Taguba, lead Army investigator of the prison abuses at Abu Ghraib, wrote in a recent report, "There is no longer any doubt as to whether the current administration has committed war crimes." (Update: And today, the ACLU released three new memos from the Department of Justice and the CIA, which for the first time show DoJ explicitly authorizing "enhanced" interrogation tactics for use on specific detainees. One of the memos states, in this context, that "interrogation techniques, including the waterboard, do not violate the Torture Statute.")
One response to the amassing evidence is Nuremberg-style war-crime prosecutions. The opposite pole is blanket immunity for all lawbreakers in advance. Somewhere in the middle lies a truth-and-reconciliation commission that would try to ferret out the truth.
To enter into the debate, you might ask which Bush administration officials did what and which could actually be prosecuted. Slate has answers.
What kind of lawbreaking has happened on President Bush's watch, among his top and mid-level advisers? What hasn't? Who is implicated and who is not? Despite the lack of oral sex with an intern, the past seven years have yielded an embarrassment of riches when it comes to potentially prosecutable crimes. We have tried to sketch out a map of who did what and when, with links to the evidence that is public and notes about what we may learn from investigations that are still pending.
We looked specifically at the White House, the office of the vice presidency, the Department of Defense, the Justice Department, and the State Department. We started with a question about whether anyone could be prosecuted for war crimes relating to the torture identified by the International Committee of the Red Cross. We soon spiraled out to trace related loops: warrantless wiretapping and the destruction of CIA tapes of the interrogations of two high-level suspects. And then we added in scandals that involve many of the same players and that have spawned investigations: the firing of the U.S. attorneys in 2006 in the Justice Department as well as politicized hirings there. In the main, the laws and treaties we concentrated on were the Geneva Conventions, the War Crimes Act, the Convention Against Torture, obstruction of justice and destruction of evidence, perjury, lying to Congress, the Civil Service Reform Act, and the Hatch Act.
The accompanying diagram (click here or on the module above to launch it) highlights a truth of criminal conspiracy: Whenever legal liability is spread among many actors, it becomes difficult to ascertain with any specificity who's on the hook for what. This, to steal a phrase from Douglas Feith, is "the whole point."
Another truism of criminal prosecution is that it's easier to go after the coverup than the crime. For that reason, we think the likelihood that, say, Alberto Gonzales gets nicked for lying to Congress or that someone gets nailed for destroying the CIA tapes is higher than the chance that John Yoo ever goes to court for suggesting that an interrogation tactic is torture only if it causes pain on the level of organ failure. Or that David Addington or Gonzales—or Dick Cheney or President Bush—ever gets nailed for urging or accepting that advice. Whether that is fair or right or just is for you to judge.
Because our focus here was on the architects of the lawless acts, we have stayed high on the chain in command, rather than naming specific interrogators for acts of alleged torture or indicting specific telecoms for warrantless eavesdropping. The lower-level players we did include are those we think may have helped shape administration policy. Often, these underlings have been left holding the legal bag. In fact, a pattern emerges: Time and again it appears that fairly low-level or inexperienced lawyers were encouraged to write "blue sky" memos authorizing the broadest range of abusive or improperly partisan behaviors. Their superiors never seriously vetted those memos. And, again, that's the point: The higher-ups have cover. They can both claim that the memos were merely thought experiments and, if push comes to shove, leave the low-ranking attorneys in the line of fire. This, we think, helps explain why high-level officials like Jim Haynes, former DoD general counsel, have gone to such length to insist that the call to expand the interrogation arsenal came from the "bottom up," not the "top down."
How likely are the prosecutions that we make a theoretical case for or against? For the most part, that's a political question, not a legal one. In general, we doubt that we'll see a host of criminal prosecutions anytime soon, but we are also waiting on criminal investigations, several key inspector general's reports, and still-classified documents. Who knows—maybe this diagram will change shape over the coming months or years.