The small matter of justice remains.

With George W. Bush in the last days of his presidency, with his American and international standing among the lowest of any president since polling began, with most historians in agreement that he was the worst president in modern times and arguably the worst ever, it seems only decent that we allow the man to quietly retire to his ranch to clear brush, watch baseball, and collect the corporate directorships that are the due of every fading plutocrat. He's done. Forget him.

But then there is the small matter of justice.

In December, the Armed Services Committee of the United States Senate issued a report that concluded the notorious abuse of detainees at Iraq's Abu Ghraib prison "was not simply the result of a few soldiers acting on their own" but grew out of interrogation policies approved by former defence secretary Don Rumsfeld and other top administration officials, "who conveyed the message that physical pressures and degradation were appropriate treatment for detainees."

Last year, the director of the CIA publicly admitted that on at least three occasions his officers inflicted "waterboarding" on detainees -- a torture technique in which the prisoner is repeatedly taken to the brink of drowning and pulled back. When human rights groups called this statement an admission of criminal activity and demanded an investigation, a White House spokesman shrugged. Waterboarding is legal, he said. And the White House reserves the right to authorize it again.

In subsequent interviews, Vice-President Dick Cheney denied nothing except the definition of torture. "We don't do torture. We never have. It's not something that this administration subscribes to. Again, we proceeded very cautiously. We checked. We had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross."

In truth, the White House had compliant lawyers write legal opinions which, when made public, were denounced and ridiculed by legal scholars the world over. Anyone could see the ridiculously self-serving nature of these opinions simply by comparing them to the definition of torture used in the U.S. State Department's annual reports on human rights in other countries -- reports which explicitly condemn the techniques authorized by the White House.
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"There is no longer any doubt as to whether the current administration has committed war crimes," wrote retired Maj.-Gen Antonio Taguba, the man who investigated the Abu Ghraib scandal, in the foreword to a human rights report released last year. "The only question that remains to be answered is whether those who ordered the use of torture will be held to account."

It is increasingly likely that Washington will answer that question in the negative.

Republican Senator John McCain courageously put his name to the Armed Services report but he made it clear he doesn't want further investigations and prosecutions. "What I am interested in and committed to, is making sure we don't do it again," he said.

President-elect Barack Obama repeated that theme: "We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to be looking at past practices and I don't believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. ... My orientation is going to be moving forward."

Last Sunday, in the New York Times, Harvard law professor Charles Fried made the case for doing nothing. Fried accepted that former attorney general Alberto Gonzales and others "at the highest levels of government allowed Americans to engage in torture and cruel, inhuman, and degrading treatment of those in our custody." But they shouldn't be prosecuted, he wrote.

Wouldn't this mean the powerful get away with acts that would land the powerless in prison? No, he wrote, because "they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf. And the same is even truer of the lower-level officers who carried out their orders."

And don't mention "Nuremberg and the trial of the Japanese war criminals," Fried adds. "Our leaders were defending their country and people -- albeit with an insufficient sense of moral restraint -- against a terrifying threat by ruthless attackers with no sense of moral restraint at all."
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That the Republicans lost the November election is justice enough for these "political crimes," Fried concludes.

So Fried's case comes down to motives. George W. Bush's were good. So were those of his top officials. True, the United States has prosecuted foreigners who committed the very acts in question -- including Japanese officers who waterboarded American prisoners during the Second World War -- but those convicted had bad motives. That makes all the difference.

There are at least two problems here.

First, motives are inherently subjective and when one seriously examines the motives of torturers -- as I did some years ago -- it's apparent they are most often selfless. Torturers don't "line their pockets" by torturing. They don't get their kicks by torturing. They torture because they believe the enemy is evil and the nation is in peril. They torture because they believe it's the right thing to do: Start giving torturers a free pass for bona fides and the prohibition against torture will quickly dissolve.

Secondly, Fried seems to have forgotten what every Crim. 101 student knows: The components of a crime are act ("did you hit the little old lady with a baseball bat?") and intent ("did you intend to hit the little old lady?"). Motive ("why did you hit the little old lady?") may be considered in determining the appropriate punishment but it is otherwise irrelevant. (The defence of "necessity" is an exception, but it's a stretch to apply it here. And defences are raised at trial, not before.)

Look, the truth is as simple as it is unavoidable.

We have evidence George W. Bush and his officials willfully and repeatedly violated American and international prohibitions on torture and lesser forms of prisoner abuse. Similar acts by foreign officials have been condemned and even prosecuted by the U.S. government.

As Antonio Taguba wrote, the only question is whether George W. Bush and his officials will be investigated and held to account as anybody else would be. Is it true, as Barack Obama said, that in the United States no man is above the law?

If George W. Bush walks whistling into the Texas sunset, the answer is no.

You can contact Dan Gardner at the Ottawa Citizen.
E-mail: dgardner@thecitizen.canwest.com

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