It's been almost two years since the end of the administration of George W. Bush. Nine years since 9/11. Nine years since the massive roundup of Muslim and Arab men without probable cause. Seven years since the invasion of Iraq on false pretenses. Eight years since lawyers at the Department of Justice published the torture memos, and government interrogators received approval to engage in the practice of waterboarding.
It's been seven years since Afghan General Abed Mowhoush was interrogated and beaten over 16 days, and finally suffocated after being stuffed in a sleeping bag by U.S. military personnel in Afghanistan. Six years since the famous "Taguba Report" (pdf) documented the abuses at Abu Ghraib. Six years since the cover-up of the circumstances surrounding the death of Pat Tillman, the former NFL player and Army volunteer killed by friendly fire in Afghanistan. And this is far from an exhaustive list of the violations of law and crimes that have gone unpunished.
Yet to date, no one in the upper command structure or cabinet of the Bush administration has been criminally or civilly punished for these crimes and abuses. This is what impunity looks like.
The release of President Bush's memoir, Decision Points, and the revelation of his swaggering confirmation that he approved waterboarding ("damn right"), is the latest evidence that the former president and other members of his administration have no expectation or fear that they will ever face legal consequences for what may be one of the most serious and sustained violations of the rule of law by government officials since Watergate.
The failure to fully investigate and pursue prosecution of flagrant violators of the rule of law during the Bush administration's "war on terror" has forever changed the legal landscape of this country. The president and his top Cabinet members and lawyers have been granted impunity for crimes for which others have been prosecuted, convicted and imprisoned in this country for decades.
As a matter of political high-mindedness, it made sense for President Obama to insist when he first took office that his administration would "look forward" rather than focus on accountability for alleged illegal conduct in the Bush administration. But there is a difference between law and politics. If we are to be a nation of laws and not one of men or women, then the decision whether to investigate and prosecute violations of the law cannot be one of political expedience. At the core of a functioning, mature democracy is the guarantee that the law is equally applicable to all of its citizens.
More important, the failure to hold higher-ups in the Bush administration to account for war crimes may have permanently changed our expectation that political leaders must abide by the laws of war. The line on torture, on detainee treatment, on disclosures to Congress and the public, has never been reset. As Bush and Yoo chat with Oprah and appear on talk shows touting their books, and waterboarding becomes the stuff of late-night jokes, Americans may no longer even know or care what constitutes illegal conduct during war.
Jon Stewart condemns those who call Bush a war criminal as equivalent to those who compare Obama to Hitler, without recognizing the critical difference between the two. Responsible and experienced lawyers believe — based on fact and standards set out in the Geneva Conventions, the Convention Against Torture and our own domestic anti-torture statute — that former President Bush may in fact be a war criminal. Likening President Obama to Hitler, on the other hand, is ugly, irresponsible name-calling.
This has dangerous implications for our future. While Obama demonstrates considerably greater respect for the rule of law than his predecessor, what will future presidents do? Each time violations of law of this magnitude go prosecuted and unpunished, they set the stage for future instances when threats to our country may cause future administrations to deem the law expendable in the name of protecting our country.
As Justice Robert Jackson said after the Supreme Court failed to strike down the World War II detention of Japanese Americans in Korematsu v. United States, when we accept excuses for illegal conduct by the state, "the principle then lies about like a loaded weapon, ready for any authority that can bring forth a plausible claim of an urgent need."
Later this year, the Supreme Court may once again come to the rescue of those who set policies that resulted in so many violations of international and domestic law. The court has decided to review Al-Kidd v. Ashcroft, a case in which an African-American Muslim man was detained in the months after 9/11.
It's by now undisputed and documented by the Justice Department that the attorney general authorized the detention of hundreds of U.S. citizens and immigrants on negligible charges in the months after 9/11. But Ashcroft's attorneys argue that he is personally immune from suit for actions taken in his official capacity. The argument logically follows the strong tradition of prosecutorial immunity that has been the law in this country. The 9th Circuit Court of Appeals, however, recently held that Ashcroft's actions denied due process (pdf) to Al-Kidd in violation of the Fourth Amendment.
There's little disagreement among court watchers that the Supreme Court took this case for the same reason it hears most of the other petitions from the 9th Circuit: to reverse the decisions of that more moderate appeals court. Once again, illegal conduct has taken place, and yet those who gave the order may avoid responsibility.
The allegations of brutal treatment and torture here in the United States sound reminiscent of claims by detainees held in U.S. custody abroad. The problem with all of these instances of abuse is not just that they happened. That is bad enough. But the brazen, unapologetic manner in which some of those who authorized these illegalities continue to flaunt their contempt for the rule of law is even more pernicious. Respect for the rule of law requires us to look back before we look forward.
Sherrilyn A. Ifill, who teaches at the University of Maryland, writes about the law for The Root.