Remarks made on May 24, 2008, in Radford, Va., at the Building a New World Conference:

In a December 31, 2007, editorial, the New York Times faulted the current president and vice president of the United States for kidnapping innocent people, denying justice to prisoners, torturing, murdering, circumventing U.S. and international law, spying in violation of the Fourth Amendment, and basing their actions on "imperial fantasies." If the editorial had been about Bush and Cheney robbing a liquor store or killing a small number of people or robbing a small amount of money or torturing a single child, then the writers at the New York Times would have demanded immediate prosecution and incarceration. Can you guess what they actually demanded? They demanded that we sit back and hope the next president and vice president will be better.

I read a nice column within the past week or so on by a college professor named David Orr. He opened with these lines:

"The 44th president will assume office with powers greatly enlarged by his or her predecessor. Drawing on recent precedents, the next president could launch preemptive wars with only minor interference from Congress, ignore the ancient right of habeas corpus and imprison political enemies, spy on American citizens without serious legal restraint, use practically any federal agency for political purposes, manipulate the press in ways inconceivable prior to 2000, corrupt the federal justice system for political gain, destroy evidence in criminal cases, use the Justice Department to prosecute members of the opposing party, offer lucrative no-bid government contracts to friends, expand the creation of private security armies, use torture, create secret prisons, assassinate inconvenient foreign leaders, circumvent laws with signing statements, and a great deal more. Such things are now possible because the system of checks and balances carefully written into the Constitution and explained in great detail in the Federalist Papers were weakened as a result of historical circumstances of the 20th century, but systematically and with great forethought by the administration of George W. Bush."

Orr noted, accurately I think, that

"The expanded powers of one president typically are carefully guarded by their successors. Republican or Democrat the next president will be advised to distance the office from the more controversial actions of George W. Bush, but only as a matter of expediency, not for reasons inherent in the Constitution or the law. If so, we will have crossed the line into executive tyranny."

But he went on to urge the next president to take action, to "support the appointment of a special prosecutor to thoroughly investigate the possible illegalities involved in the recent expansion of presidential power not to exact political revenge, but as the first step toward recalibrating the presidency to the Constitution. Second, he or she should appoint a Blue Ribbon panel of experts in Constitutional Law and the presidency to make recommendations to Congress about the restoration of the office."

I'm inclined to agree that this is one of the approaches we should pursue, with a number of caveats. First, this will be pointless with a President McCain and difficult with a President Obama. Second, blue ribbon panels of experts, including congressional committees, have been screaming their recommendations for years. We know which bills to repeal, which powers to re-criminalize. And we know already as undisputed openly confessed to fact that the current president has committed crimes that should put him away for life. The investigations have been done. It's only the prosecution that's needed.

So, the question, as far as prosecution by the U.S. Justice Department goes, should Obama become president, will be whether Obama will approve of prosecuting Bush, Cheney, et alia. Some weeks back, around the time of the Pennsylvania primary, a Philadelphia News Reporter asked Senator Obama that question. Obama did not bring up the topic himself. The reporter raised it. He then reported as follows:

"The question was inspired by a recent report by ABC News, confirmed by the Associated Press, that high-level officials including Vice President Dick Cheney and former Cabinet secretaries Colin Powell, John Ashcroft and Donald Rumsfeld, among others, met in the White House and discussed the use of waterboarding and other torture techniques on terrorism suspects. I mentioned the report in my question, and said 'I know you've talked about reconciliation and moving on, but there's also the issue of justice, and a lot of people -- certainly around the world and certainly within this country -- feel that crimes were possibly committed' regarding torture, rendition, and illegal wiretapping. I wanted to know how whether his Justice Department 'would aggressively go after and investigate whether crimes have been committed.'

"Here's his answer, in its entirety:

"'What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve. So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.'"

Obama did not say he prefers prosecution to impeachment for political reasons. He said he's opposed to both because he doesn't know of any crimes having been committed, and he hasn't seen any exceptional circumstances, but that he's open to prosecution should he discover that crimes have been committed. We can leave to one side the fact that many impeachable offenses are not crimes, and the question of why Obama is waiting until 2009 to look into this seemingly important issue, as well as the question of what in the hell WOULD constitute exceptional circumstances. I want to focus on what Obama already knows, because we all know it, because it's public knowledge.

The current president has openly confessed to violating the Foreign Intelligence Surveillance Act, and with it the Fourth Amendment. He's on videotape repeatedly lying about not doing so over a period of years, and he's on videotape brazenly confessing to doing so after he had been caught. Eavesdropping in violation of FISA is a federal crime, punishable by up to 5 years in prison and a $10,000 fine, for each violation. Obama knows this but trusts members of the media not to point it out. And if they won't point it out now, can we be sure we'll persuade them to point it out later?

The president has developed a habit of asking his vice president's lawyer to draft things called "signing statements" after he signs bills into law. These statements openly announce the president's intention to violate certain sections of new laws, and they are all openly posted on the White House website. Twice in the past year the Government Accountability Office has reviewed sample collections of Bush signing statements, and each time found that in many cases, Bush has already violated the laws he announced he had the right to violate. The studies have listed which laws these are. Senator Obama knows this, yet claims he would need an investigation to discover whether any crime has occurred.

It is a felony to make false statements to Congress or to defraud Congress with misleading statements. Bush has done so in writing and orally, about the gravest matters, including the grounds for war. Bush and Cheney and gang's lies about Iraqi weapons and ties to al Qaeda are on videotape and in writing, and they continue to make many of the same claims to this day, claims that have been shown in every detail to have been, not mistakes, but lies. Obama knows this. He talks frequently about how he himself opposed the war before he supported it.

It is illegal for the president to misappropriate public funds or to violate the War Powers Resolution, both of which he did by secretly taking money from Afghanistan to begin the work of invading Iraq and to launch bombing raids before receiving congressional authorization. This is not disputed, and there is no question that Obama knows about it.

Federal laws and international treaties prohibit torture and cruel, inhuman, and degrading treatment, as well as secret detentions, denial of due process, and rendition to other nations for purposes of torturing. Torture has been advocated for by Bush and Cheney and their staffs, is documented by victims, witnesses, and public photographs, and recently by a public confession by the president. Torture was always illegal and has been repeatedly recriminalized under Bush and Cheney. Bush has reversed bans on torture with signing statements.

It is a violation of the National Security Act to fail to keep all Members of the House and Senate Intelligence Committees "fully and currently informed" of intelligence activities, such as the warrantless surveillance programs.

Bush has violated the Stored Communications Act of 1986 and the Communications Act of 1934 by obtaining millions of U.S. customer telephone records without obtaining a subpoena or warrant, without customer consent, and outside of any applicable "emergency exceptions."

Bush has routinely violated federal laws concerning retaliating against witnesses and other whistleblowers.

Bush has violated federal regulations requiring the disciplining of those who leak classified information whether they intend to or not.

Back in the summer of 2006, prior to exposure of numerous crimes by Bush and Cheney, Congressman John Conyers released a report called "The Constitution in Crisis", in which he listed dozens of laws that had already been violated by Bush and Cheney.

It's a felony to order former White House staffers not to comply with subpoenas.

It's a violation of the UN Charter and therefore of Article VI of the US Constitution to launch a war of aggression against Iraq or to threaten one against Iran. Those threats are on videotape.

And it is a violation of international and US law to target civilians, journalists, hospitals, and ambulances, to use antipersonnel weapons including cluster bombs in densely settled urban areas, to use white phosphorous as a weapon, to use depleted uranium weapons, and to employ a new version of napalm found in Mark 77 firebombs. Under the command of George W. Bush, the U.S. military has engaged in collective punishment of Iraqi civilian populations, including by blocking roads, cutting electricity and water, destroying fuel stations, planting bombs in farm fields, demolishing houses, and plowing down orchards. The Fourth Geneva Convention forbids collective punishment and the targeting of civilians. Article VI of the U.S. Constitution makes that Convention the law of the land.

At some point we have to simply choose to stop listing the crimes. For many of these crimes no investigation is needed or even possible or conceivable. The President says he violated FISA. What better evidence is imaginable? An impeachment or a prosecution could take a day. What we need is not time and resources but the will and the pressure to make it happen.

You can buy John Conyers' report in bookstores, but he refuses to hold impeachment hearings. Instead he sends requests and FOIA requests and subpoenas and contempt citations, and most of them get sent back with little snide remarks effectively telling him where he can stick it. Should we have a President Obama and a Democratic House and/or Senate, it will be interesting to see whether the Judiciary Committee and other committees renew their subpoenas and contempt citations and whether the new Justice Department enforces them. Of course, I've phrased that in reverse order. If the Justice Department still doesn't want to enforce them, the Congress will cease issuing them. If the old White House and administration has not destroyed all its documents, then whether subpoenas for documents are reissued will depend on whether the new White House wants to hand them over.

The optimists among us expect great things in this regard from Obama and believe he's wisely holding his hand close to his chest. I think he would be much wiser to let it be known that a vote for him would put the least popular president and vice president in history behind bars. That could give him a landslide, and it'll take a landslide for him to overcome election fraud.

But Obama's not taking that approach, which suggests that persuading him to act will be an uphill fight. We can do it, but it'll be a struggle, and it should begin now, and it should include a push for impeachment. I expect that we will see a stronger push for impeachment in the House in the coming months. And, remember, there are past impeachments and trials that have taken a total of two days. Eight months is plenty of time. And if we get to impeachment, we will get to indictment for certain. If we don't get to impeachment, Bush and Cheney's strongest defense in court will be to argue that they were never impeached.

Of course, we also have the possibility of prosecution in a foreign court or even an international court, and we should do what we can from this country to encourage those avenues. There have been cases filed against Rumsfeld already, and Bush's rumored hideaway in Paraguay has now become part of a nation with a government opposed to his agenda. So, the Pinochet approach is a possibility. Lawyers should be working night and day to make this happen, and the rest of us should support them.

Prosecutors and judges do not operate in a vacuum. Activism and public education have a huge impact, and that is something we can all help with. We can hold forums like this one. We can contact the media. We can build progressive media. We can pass local and state resolutions. We can even file court cases.

The National Lawyers Guild is urging Congress to appoint a special prosecutor, independent of the Justice Department, to "investigate and prosecute high Bush officials and lawyers including John Yoo for their role in the torture of prisoners in U.S. custody."

The Guild's new 14-page paper explains how lawyers, including Yoo, Jay Bybee, David Addington, and William Haynes, counseled the White House on how to get away with war crimes. The lawyers said that the Department of Justice would not enforce federal laws against torture, maiming, assault and stalking.

Guild President Marjorie Cohn recently testified in Congress that it was "reasonably foreseeable" the lawyers' advice "would result in great physical and mental harm or death to many detainees"; more than 100 have died, many from torture. Torture, like genocide, slavery and wars of aggression, is absolutely prohibited at all times. No country can ever pass a law that would allow them.

Cohn testified that Cheney, Rice, Rumsfeld, Powell, Tenet, Ashcroft, and Bush are liable under the War Crimes Act and the Torture Statute.

Congress could appoint a special prosecutor or begin impeachments or use inherent contempt (that is, the Capitol Police) to compel testimony. But it will only act if forced to by us.

My friend John Bonifaz filed a law suit against the President before the invasion of Iraq on behalf of congress members and military families claiming an invasion would be unconstitutional without a proper congressional declaration of war. John consulted last year with a professor at Rutgers University, who worked up a case with his students for a full year, and last week filed it in Federal District Court in Newark, New Jersey. The Complaint, filed on behalf of a number of peace groups, seeks a Declaratory Judgment that the President’s decision to launch a preemptive war against a sovereign nation in 2003 violated Article I, Section 8 of the United States Constitution, which assigns to Congress the power to Declare War.

Every peace and justice group in the country should be working with lawyers, choosing their favorite crime, and filing a suit, the point being to change the public conversation until we reach the point that a prosecutor will act.

Also last week in Milano, Italy, 25 CIA agents and an Air Force colonel went on trial in absentia for kidnapping a man on an Italian street and renditioning him to Egypt to be tortured. The victim's wife testified for over six hours. A newspaper report read:

"Nabila at first rebuffed prosecutors' requests to describe the torture her husband had recounted, saying she didn't want to talk about it. Advised by prosecutors that she had no choice, she tearfully proceeded: 'He was tied up like he was being crucified. He was beaten up, especially around his ears. He was subject to electroshocks to many body parts.' "'To his genitals?' the prosecutors asked. "'Yes,' she replied."

The judge said that the current and immediate past prime ministers of Italy will be required to testify during the trial.

A couple of weeks ago, an Iraqi sued U.S. contractors for torture. Emad al-Janabi's federal lawsuit, was filed in Los Angeles, and claims that employees of CACI International Inc. and L-3 Communications punched him, slammed him into walls, hung him from a bed frame and kept him naked and handcuffed in his cell. More such suits are needed, hundreds more.

And it is important to keep in mind that the United Nation's recognition of the US occupation of Iraq will end on December 31st, which may make US mercenaries and contractors subject to Iraqi law, which may make the Pentagon pull the plug on the whole thing. We should be alert to this possibility and be ready to push it.

We should also follow the example of Brattleboro and Marlboro, Vermont, towns that have passed resolutions requiring local law enforcement to arrest Bush or Cheney should they ever set foot there. The more towns that do it, the more higher officials hear about it.

We're like the people watching out the window as a woman is robbed in the street, all assuming that someone else is telling the police. We should ALL be telling the police every day.

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