Watergate II :more indictments : the stage is set


Richard Moore


 Prosecutor Should Dig Deeper 
By Jeremy Brecher and Brendan Smith 
The Baltimore Sun 

Sunday 30 October 2005 

Prosecutor Patrick J. Fitzgerald's investigation into the
leak of a CIA operative's name has reaffirmed the basic
American principle that even the highest government
officials are subject to the rule of law. His charges
represent the start of a revitalization of the
institutions designed to maintain government under law.
But that revitalization still has a long way to go.

As a prosecutor, Mr. Fitzgerald rightly brought charges
where the law was clearest and the evidence most
compelling. But the alleged crimes he is investigating are
in essence the apparent cover-up operation for another
possible set of crimes against national and international
law. Why would I. Lewis "Scooter" Libby commit perjury and
lie to FBI agents, as he is accused of doing?

The letters from Acting Attorney General James B. Comey
appointing Mr. Fitzgerald delegated to him "all the
authority of the attorney general" to investigate and
prosecute "violations of any federal criminal laws related
to the underlying alleged unauthorized disclosure."

We would argue that Mr. Comey's charge, based on the
evidence Mr. Fitzgerald has uncovered, authorizes the
special prosecutor to investigate the following:

Did top Bush administration officials deceive Congress?
Several federal statutes make it a crime to lie to
Congress. As Democratic Rep. Jerrold Nadler of New York
recently put it, "If, as mounting evidence is tending to
show, administration officials deliberately deceived
Congress and the American people, this would constitute a
criminal conspiracy against the entire country."

Did top administration officials violate the U.S.
Anti-Torture Act? The law makes torture and conspiracy to
commit torture a crime. The former commander at Abu Ghraib
prison, Brig. Gen. Janis Karpinski, has stated that
abusive techniques were "delivered with full authority and
knowledge of the secretary of defense and probably [Vice
President Dick] Cheney."

Did top administration officials violate the War Crimes
Act? Passed by a Republican Congress in 1996, the law
makes it a federal crime for any U.S. national to commit a
grave breach of the Geneva Conventions.

In a 2002 memo, Attorney General Alberto R. Gonzales, who
was then White House counsel, urged that the United States
"opt out" of the Geneva Conventions for the Afghan war on
the grounds that opting out "substantially reduces the
likelihood of prosecution under the War Crimes Act."

What was he worrying about? Did the special prosecutor
find evidence that top Bush administration officials
ordered or condoned the string of Geneva Conventions
violations that run from Abu Ghraib to Guantanamo Bay and
from the leveling of Fallujah to attacks on medical

Did top administration officials violate the War Powers
Act? The law requires the president to present to Congress
the basis for proposed U.S. military action. If the
administration provided false information, is it guilty of
violating the War Powers Act and, in effect, usurping the
war powers given to Congress under Article I, Section 8 of
the Constitution?

Did top administration officials violate the U.N. Charter?
U.N. Secretary-General Kofi Annan has said the U.S. attack
on Iraq was "illegal." The conduct of the war has involved
many breaches of internationally guaranteed protections of
civilians. Did the special prosecutor find evidence of
deliberate violation of U.S. treaty obligations, which
under Article VI of the Constitution are the law of the

If the special prosecutor found evidence of violation of
"any criminal laws," he is obliged to investigate and
prosecute. Where the abuses he finds are not covered by
existing federal law, they must be addressed by Congress,
either by new laws or through the impeachment process.

The Bush administration's alleged abuses of national and
international law are closely linked. The Valerie Plame
affair was not just a random incident, but rather an
effort to silence critics attempting to halt an aggressive
war whose initiation and conduct appear to have violated
both national and international law. Indeed, aggressive
war, illegal conduct of war and torture are nothing less
than war crimes.

Investigation and, if warranted, prosecution of such
crimes is crucial for the revitalization of democratic
government in our country. To let such flagrant flouting
of the rule of law go unpunished would be to invite
government officials to subvert our Constitution again.

Repudiating war crimes committed by high U.S. officials is
also an essential starting point for repairing the damage
done to our country's international relationships and
reputation. There is no way to take the taint off our
country for the abuses symbolized by Abu Ghraib without
holding those responsible for them accountable.


Brendan Smith, a legal scholar, and Jeremy Brecher, a
historian, are editors of In the Name of Democracy:
American War Crimes in Iraq and Beyond. Mr. Smith's e-mail
address is •••@••.••• , and Mr. Brecher's
e-mail address is •••@••.••• .



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