There is something that is becoming increasingly clear to me. The Bush administration has made a number of decisions that fall into a hazy legal universe. Whether or not anyone is indicted and prosecuted for these decisions will be determined not by an independent assessment of the law, but by other factors entirely.

For example, a newly leaked FBI memo shows how tenuous the legality of Bush’s rendition program is:

In a memo forwarded to a senior FBI lawyer on Nov. 27, 2002, a supervisory special agent from the bureau’s behavioral analysis unit offered a legal analysis of interrogation techniques that had been approved by Pentagon officials for use against a high-value Qaeda detainee. After objecting to techniques such as exploiting “phobias” like “the fear of dogs” or dripping water “to induce the misperception of drowning,” the agent discussed a plan to send the detainee to Jordan, Egypt or an unspecified third country for interrogation. “In as much as the intent of this category is to utilize, outside the U.S., interrogation techniques which would violate [U.S. law] if committed in the U.S., it is a per se violation of the U.S. Torture Statute,” the agent wrote. “Discussing any plan which includes this category could be seen as a conspiracy to violate [the Torture Statute]” and “would inculpate” everyone involved.

This is just the latest revelation that many legal minds think Bush has exceeded his authority in authorizing torture, extraordinary renditions, and indefinite detentions.

In another ominous sign, Jimmy Carter just declared:

“I thought then, and I think now, that the invasion of Iraq was unnecessary and unjust. And I think the premises on which it was launched were false.”

This resonates with the assessment of Tony Blair’s cabinet, spelled out in the Downing Street Leaks. Is it legal to launch a preemptive war based on a pack of lies? I think that depends on who the Attorney General is, who controls Congress, and who sits on the Supreme Court. It’s an impeachable offense if enough people say it’s an impeachable offense. For our civilian unelected leadership, participation in a conspiracy to deceive Congress could easily be an indictable offense. But it would only be indictable if there is someone inclined to investigate.

The uncomfortable reality is that Bush has authorized policies of dubious legality through executive orders. Those executive orders can be interpreted as clear violations of our signed treaties, which are the highest law of the land. But the executive orders can also be brushed under the rug and excused as necessary actions for a country under threat.

The reason this is so troubling is that the determination of whether George Bush is a resolute wartime President, or a potential war criminal and violator of basic human rights, depends almost entirely on who wields power. Bush and his cronies cannot legally afford to lose power. If they do, they could find themselves thoroughly discredited and possibly imprisoned.

Given control of the Justice Department, it would be a simple matter for me to indict Rumsfeld for the crimes of Abu Ghraib. And the Bushies understand this. For me, this makes it critically important that we get paper trails for our ballot boxes. We are no longer facing an opponent with a differing political philosophy, we are facing an opponent that has been engaged in a criminal conspiracy. Their only failproof defense is to maintain control of the courts, the oversight committees, and the Justice Department. And that does not bode well for clean and fair elections.

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