Coercive interrogation
Can any Bush officials be prosecuted for the policies that paved the way for secret imprisonment, rendition to other countries that torture, or American torture of terrorism suspects? These government lawyers and policymakers decimated the Geneva Conventions, defined their way out of compliance with the Convention Against Torture, and also sailed by the War Crimes Act and the Uniform Code of Military Justice. They either approved or allowed for techniques including water-boarding, exposure to heat and cold, sleep deprivation, stress positions, and more. But could any of them go to prison for this?

The opinions from the Office of Legal Counsel in the Department of Justice–written by John Yoo and Jay Bybee, apparently in consultation with David Addington and perhaps others–provided a legal justification for the interrogations and related actions. The OLC is the president’s top-secret legal shop: An internal Supreme Court for legal rulings within any administration. Taken together, the opinions operate as a “golden shield,” as former OLC head Jack Goldsmith has put it. It will be–and should be–extremely difficult to prosecute any government official who relied on the OLC opinions. What about the lawyers who created those opinions or urged them into existence?

Author Philippe Sands has observed in his recent book Torture Team that there was a prosecution at Nuremberg for those who gave legal advice (captured in the film Judgment at Nuremberg). Others have warned that some of the architects of torture policy may be prosecuted if they travel abroad.

Ultimately, the only meaningful chance for domestic prosecution, it seems to us, would be for someone in the inner circle to flip and reveal that together its members conspired to break the law, by knowingly crafting or urging the crafting of opinions that had no legitimate legal foundation. So far, however, the inner circle hasn’t cracked. Indeed, its members have stuck to the story that the impetus for harsh interrogation tactics came not from the “top down,” as Sands has argued, but from the “bottom up”–from the lawyers on the line at Guantanamo and rogue interrogators who took the law into their own hands. These are shades of the Abu Ghraib bad-apples defense, which led to the prosecution only of low-level soldiers. If it’s proved false, then players like David Addington and Jim Haynes could be on the hook for lying to Congress. But that’s a big if.

Destruction of the CIA tapes
Between 2003 and 2005, the CIA taped the interrogations of high-level suspects Abu Zubaydah and Abd al-Rahim al-Nashiri. For almost two years after that, lawyers within the agency–and without–debated what to do with them. The tapes were never handed over to the 9/11 Commission, which had requested such materials, nor to any of the federal judges presiding over cases of other Guantanamo detainees, at least one of whom had demanded them. Indeed, the government denied such tapes existed. And then it made them disappear. The tapes of Zubaydah and al-Nashiri were destroyed in 2007, reportedly after an order from the head of the CIA’s clandestine operations, Jose Rodriguez. Did Rodriguez make this call on his own or with the approval or urging of top Bush officials? And did the destruction of the tapes, amid questions about the legality of the tactics they captured on film, amount to obstruction of justice or a related charge? After much prodding by Sen. Edward Kennedy, D-Ma,. and others, current Attorney General Michael Mukasey authorized a full-blown criminal investigation of the destruction of the tapes, by prosecutor John Durham of the U.S. Attorney’s office in Connecticut.

Meanwhile, in March the Pentagon revealed that the interrogations of other suspects had also been taped. These include detainee Ali Al-Marri, the only government-designated enemy combatant being held on U.S. soil. His lawyers are fighting over the status of those tapes in court.

U.S. Attorney Firings
After nine U.S. attorneys were fired in 2006, former Attorney General Alberto Gonzales and some of his aides were accused of trying to clear out lawyers who’d failed to exhibit sufficient fealty to the Bush administration, either by refusing to prosecute flimsy cases against Democrats or by prosecuting strong ones against politically powerful Republicans. E-mail chatter within the Justice Department throughout the process of firings, which began shortly after the 2004 election, reflected sleazy ideological reasoning but offered up little in the way of a smoking gun. Congressional testimony by Gonzales and former Deputy Attorney General Paul McNulty and others created a haze of finger-pointing and fibs. The Office of Special Counsel, an independent federal agency that investigates and prosecutes prohibited personnel practices, is currently investigating the role politics may have played in the firings. Although the dismissals themselves probably will not give rise to criminal charges–U.S. attorneys serve at the pleasure of the president–false testimony about the process could cause trouble for Justice Department officials and aides.

Hiring in the Justice Department
Even before the U.S. attorney firings in 2006, the Justice Department was apparently making politicized hiring decisions that violated its own standards. A joint investigation (PDF) by the department’s inspector general and Office of Professional Responsibility bitingly found that in 2002 and 2006, candidates for the prestigious Summer Law Internship and Honors Programs were weeded out because their résumés sent liberal signals (environmental advocacy, the American Constitution Society). Last month, one rejected applicant sued the Justice Department (with 359 others waiting in the wings) on the basis of the findings in the I.G./OPR report. A second joint investigation is examining politicized hiring in the Civil Rights Division after a suspiciously large increase in the number of conservative lawyers hired there between 2003 and 2005. Meanwhile, the Office of Special Counsel is conducting its own investigation into the Justice Department’s hiring procedures.

In the fall of 2001, the National Security Agency sought broad power to eavesdrop on phone calls and e-mails between people in the United States and people abroad. Since 1978, when Congress enacted the Foreign Intelligence Surveillance Act, the NSA’s surveillance of domestic-to-international communications had been vetted by a special court, which reviews applications for warrants. In an urgent circumstance, the agency could eavesdrop for 72 hours before applying for a warrant, and the court had rejected its warrants applications in only a tiny number of cases. Still, the Bush administration wanted more leeway. And so, based on an opinion by John Yoo of the Office of Legal Counsel in the Department of Justice, the NSA bypassed the FISA court and began to conduct warrantless wiretapping on calls and communications from the United States to a foreign country or vice versa.

Yoo’s opinion, which has never been released, was kept secret from the NSA’s own lawyers and from Congress, including the chairmen and ranking minority members of the Senate and House intelligence oversight committees. Jane Mayer reports that David Addington, Jim Haynes, and Tim Flanigan enlisted Yoo to write his analysis, which rested on the administration’s favored all-expansive theory of executive power. When Jack Goldsmith reviewed Yoo’s work after becoming head of the OLC, he told Mayer “it was the biggest legal mess I had ever seen in my life.” Then-Deputy Attorney General James Comey was also unimpressed. In a Hollywood car-chase moment, he and Goldsmith rushed to the hospital bed of the critically ill John Ashcroft in time to persuade Ashcroft not to sign a reauthorization for the NSA program, which Alberto Gonzales and White House Chief of Staff Andrew Card stormed into the room with.

The New York Times exposed the NSA warrantless wiretapping in December 2005. After much wrangling over the merits of the program and immunity for telecom companies that turned over their records to the government, Congress caved and amended FISA to give the White House the broad wiretapping powers it wanted.

John Ashcroft
Justice Department
Attorney General
Implicated in: Coercive interrogation, DoJ hiring, wiretapping

Ashcroft was a member of the “principals committee,” which, ABC reports, met in the White House repeatedly to discuss and approve specific torture tactics, including water-boarding and physical assault. Ashcroft oversaw the withdrawal of the John Yoo torture memo by Jack Goldsmith, suggesting that he was aware–at least in hindsight–of the shoddy legal reasoning supporting it. But in recent congressional testimony, Ashcroft insisted that the Yoo memo authorized nothing that was illegal and that no procedure allowed pursuant to that memo has been deemed torture.

Case for prosecution: Ashcroft was the head of the Justice Department when torture was approved. The Office of Legal Counsel answered to him.

Case against prosecution: The difficulty of prosecuting lawyers for legal advice. Ashcroft has shown himself to be kind of a hero in retrospect, at least on the warrantless-wiretapping front.

Lt. Col. Diane Beaver
U.S. Armed Forces
Staff Judge Advocate at Guantanamo
Implicated in: coercive interrogation
Beaver was the lawyer at Guantanamo who signed off on all 18 of the disputed new interrogation techniques, including water-boarding. She also discussed hiding detainees from the International Committee of the Red Cross, which visited Guantanamo to check that interrogators were complying with the Geneva Conventions. Beaver urged interrogators to “curb the harsher operations while ICRC is around,” according to meeting minutes.

Case for prosecution: Beaver’s memo justifying the 18 torture-light techniques became at least part of the legal rationale for abusing prisoners at Guantanamo.

Case against prosecution: Beaver was not experienced enough and did not have sufficient resources to offer the last word on the legality of proposed interrogation techniques. She was given four days and a few books to prepare her memo. She had little experience in international law. She believed her legal reasoning would be vetted by those higher up the chain of command. Also, some of her legal research, suggesting limits on the use of these techniques and raising doubts about them, was not passed on. Beaver was also a named defendant in the case against Rumsfeld that was dismissed.

Joshua Bolten
White House
Chief of Staff
Implicated in: U.S. attorney firings

In February 2008, the House of Representatives voted to hold White House Chief of Staff Joshua Bolten in contempt of Congress for his refusal to turn over documents relating to the firing of nine U.S. attorneys last year. Like fellow White House aides Harriet Miers and Karl Rove, Bolten had refused to appear before Congress to testify about his knowledge of why the federal prosecutors were dismissed. Because the chief of staff acts as the custodian of records for the White House, Bolten was specifically cited for declining to provide e-mails and other internal documents that congressional committees requested in the course of their investigation.

Case for prosecuting: Bolten’s refusal to cooperate with Congress, based on claims of executive privilege, is part of a constitutional showdown over the separation of powers and Congress’ oversight responsibilities. He has refused to provide a broad swath of documents requested by both houses of Congress, leading the Senate Judiciary committee to also find him in contempt of Congress for ignoring its own subpoena for documents (PDF).

Case against: Bolten’s role in the firing of the attorneys appears to be largely procedural. Though he was named in congressional requests for documents as the custodian of White House records, he did not assume his current position as chief of staff until April 2006, well after the White House discussions reportedly began about which prosecutors to fire.

George Bush
White House
Implicated in: Coercive interrogation, CIA tapes, and wiretapping

President Bush was responsible for the decision in February 2002 to suspend the Geneva Conventions for detainees in the war on terror. That decision led directly to changes in interrogation policy and to a lack of direction for interrogators beyond a vague warning to treat detainees “humanely.” Bush also admitted in April to ABC News that he knew his top national-security advisers had discussed and approved specific torture techniques to be used on high-value al-Qaida suspects. He stated that “yes, I’m aware our national security team met on this issue. And I approved.”

In addition, shortly after 9/11, President Bush secretly ordered the NSA to conduct surveillance of telephone calls without obtaining a warrant. The Foreign Intelligence Surveillance Act of 1978 required a warrant or an application to the special FISA court. The president has claimed authority to bypass FISA under the Authorization for Use of Military Force that Congress passed in 2002 before the war in Iraq and his war powers as president. Last month, a federal judge ruled the president did not have the constitutional authority to sidestep FISA (which Congress recently changed). The president has refused to turn over documents related to the eavesdropping, including 43 separate authorizations for the program.

Case for prosecution: The president, in his capacity as commander-in-chief of the military, is responsible for the actions of his subordinates who broke the laws

Case against prosecution: House Speaker Nancy Pelosi won’t even talk about impeachment.

Jay Bybee
Office of Legal Council
Implicated in: coercive interrogation

As the head of the OLC, Bybee signed the infamous August 2002 torture memo. Now a judge on the U.S. Court of Appeals for the 9th Circuit, he was confirmed before the memos leaked and hasn’t come under the same scrutiny as Yoo. Should he? By all accounts, Bybee relied heavily on Yoo’s work. But the ACLU just released another memo that Bybee signed, which explicitly approved enhanced interrogation techniques for use on a specific detainee, based on the questionable theory that they did not constitute torture because “we believe those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering.”

Case for prosecuting: By signing these memos, Bybee took responsibility for them. He may have also helped draft them. Yoo testified before Congress in May that his superiors reviewed and edited the torture memos.

Case against prosecuting: As with Yoo, there is resistance to prosecuting Bybee for giving legal advice. He is a sitting federal judge to boot. And as far as we know, there’s no evidence that he helped set policy on interrogation.

Richard Cheney
Office of the Vice President
Vice President
Implicated in: Coercive interrogation, CIA tapes, wiretapping

Cheney was a member of the “principals committee” that ABC reported met in the White House repeatedly to discuss and approve specific torture tactics, including water-boarding and physical assault. (David Addington denied in congressional testimony that Cheney participated.) Recently, Lawrence Wilkerson, former chief of staff to Colin Powell, testified that Cheney probably knew the U.S. military was using torture on Iraqi detainees at Guantanamo and at prisons in Iraq. He testified that leadership failed “at the highest levels of the Pentagon, in the Vice President’s Office and perhaps even in the Oval Office.” Wilkerson also claims it was Cheney who led the charge to do away with Geneva protections for detainees. He said that Cheney led the argument “that essentially wanted to do away with all restrictions.” Asked by a British newspaper whether the vice president was guilty of a war crime, Wilkerson said: “Well, that’s an interesting question–it was certainly a domestic crime to advocate terror and I would suspect that it is … an international crime as well.”

Jane Mayer suggests that Cheney may have met with the inspector general of the CIA about his investigation of abusive interrogation–an investigation that was then stopped in its tracks. Mayer also writes that Cheney consistently overrode Attorney General Ashcroft and his staff in their attempts to revisit the torture policy or the applicability of the Geneva Conventions.

On wiretapping, Cheney defended the White House’s secret, warrantless surveillance program in 2002, when Justice Department lawyers like former Deputy Attorney General James Comey raised grave doubts about its legality.

Case for prosecution: The vice president and his office have pushed hard for violation of the law, fought to immunize lawbreakers, and obstructed inquiries into lawlessness.

Case against prosecution: House Speaker Nancy Pelosi won’t even talk about impeachment.

Michael Chertoff
Department of Justice
Criminal Division
Implicated in: coercive interrogation

Chertoff was head of the DoJ’s Criminal Division during the debate about what to do with al-Qaida operative Abu Zubayda. At his 2005 confirmation hearing for the post of secretary of homeland security, Chertoff testified that he’d only warned the CIA about abusive interrogation that involved “potential criminality.” But Jane Mayer cites DoJ and CIA sources who say that “Chertoff was consulted extensively about detainees’ treatment.” A CIA source says, “Chertoff, and Gonzales, and all these other guys act like they know nothing about this now, but they were all in the room.”

Case for prosecuting: Not much. Even if Chertoff was in the loop on how Abu Zubayda was being treated, it’s arguable that he was helping to provide the legal justification or to set policy.

Case against prosecuting: No detailed evidence of Chertoff’s level of involvement has surfaced. Nor are there allegations that he was part of a conspiracy to knowingly break the law by writing OLC opinions that knowingly twisted and narrowed what torture is.

Michael Elston
Department of Justice
Former Chief of Staff to Paul McNulty
Implicated in: U.S. attorney firings and politicized hiring

Elston led the 2006 committee that screened applicants for the Honors and Summer Law Internship programs. According to the joint I.G./OPR investigation (PDF), Elston directed the applications to be screened for “wackos” and then looked over the remaining files himself. Elston says he does not recall why he accepted or rejected particular files, but he does remember being told that another member of the committee was apparently rejecting applicants for their liberal affiliations.

Elston is also implicated in the U.S. attorney firings: In February, the dismissed U.S. attorney for eastern Arkansas, H.E. Cummins III, e-mailed other fired U.S. attorneys to say that Elston called him and threatened retaliation if Cummins spoke to the press. But Cummins downplayed any sinister tone to the call during his testimony to Congress a few weeks later.

Case for prosecution: Elston could get caught for lying to Congress. Since he knew that applicants were being weeded out based on political affiliation, Elston also may have broken civil service-laws that prohibit discrimination based on “political affiliation” or “politics.” But those laws can’t serve as the basis for a criminal prosecution (though breaking them can lead to lawsuits, like the one already filed, and lead to disbarment).

Case against: Elston no longer works for the government, having resigned to work at a private law firm in 2007, and the Department of Justice cannot compel a former employee to testify unless it opens a criminal investigation. This obstacle–along with the fact that applicants’ files have since been destroyed–would prevent the Justice Department from gathering further evidence that Elston was lying about being at a remove from the controversial hires.

Doug Feith
Department of Defense
Undersecretary of Defense for Policy (No. 3 at the Pentagon)
Implicated in: coercive interrogation

Doug Feith was responsible for offering policy advice on the applicability at Guantanamo Bay of the Geneva Conventions–specifically, Common Article 3, which prohibits cruel and inhumane treatment of prisoners. Feith claims he advised the president to honor the spirit of Geneva, even as he argued that POW status should not be granted to Taliban or al-Qaida fighters. But reporting by British author and law professor Philippe Sands suggests that Feith argued for suspending Geneva at Guantanamo–that this was, in fact, “the point.”

Case for prosecution: Arguably the single-most important decision for opening the door to torture at Guantanamo and elsewhere was the one to withhold Geneva protections from prisoners. This created a legal “black hole” at Guantanamo in which interrogators were left to guess at the bounds of illegal abuse. Whether doing away with Geneva was “the point” or simply created enough doubt to allow interrogators to behave lawlessly, it encouraged all the departure from the rule of law that followed. The War Crimes Act of 1996 makes it a federal crime for any U.S. national, whether military or civilian, to cause a “grave breach” of the Geneva Convention. If Feith helped devise a way to ignore the convention, he could well be liable for that.

Case against prosecution: Feith argues that he urged adherence to Geneva and was subsequently overruled by “lawyers” in the Bush administration. The paper trail is equivocal. Feith insists that abusive interrogators were rogue bad apples and that the law always barred abuse. Given that the paper trail suggests Feith argued for at least preserving the spirit of humane treatment, it may be difficult to tag him for violating them.

Timothy Flanigan
White House
Deputy Counsel
Implicated in: coercive interrogation

According to Jack Goldsmith, Flanigan was a member of the five-member War Council that reinterpreted and rewrote the law governing treatment of detainees. He was assistant attorney general at the OLC during the first Bush administration, and Mayer writes that he “was more important than most people realized, because he had inside knowledge of the OLC, having run it, and he used that.” Bush nominated him for deputy attorney general in 2005, but Flanigan withdrew after questions arose about his role in setting detainee policy and his ties to Republican lobbyist Jack Abramoff.

Case for prosecuting: Flanigan was part of the Cheney-Addington orbit from the very beginning: He is reported to have participated in video conferences with Addington, Yoo, and Gonzales on Sept. 11. During his abortive confirmation process, he hedged when asked whether some of the worst interrogation techniques, like mock executions, were illegal or immoral. If one believes Yoo’s version of events, it was Flanigan, along with Addington and Gonzales, who helped provide the core legal arguments for inhumane treatment of detainees.

Case against: So long as the contents of the War Council discussions remain largely private, it is difficult to pinpoint Flanigan’s contributions to the discussions. Flanigan left government in 2002 and is not considered the biggest fish to fry.

Alberto Gonzales
White House and Department of Justice
White House Counsel, Attorney General
Implicated in: coercive interrogation, wiretapping, destruction of CIA tapes, U.S. attorney firings, politicized hiring.

Gonzales has been linked to more of the controversies we lay out here than almost any other player. If this were The Sopranos, he’d be our Silvio. Jack Goldsmith puts him on the five-member War Council when he was White House counsel. He knew about the warrantless wiretapping. It’s not clear how much, if at all, Gonzales directed any of these shows, however. Mayer writes that he “seemed intimidated by the Vice-President and his staff.” Philippe Sands suggests that he had limited understanding of international law but strongly supported getting rid of the Geneva Conventions for prisoners. And that he was perennially willing to defer to David Addington. CIA and DoJ officials have named Gonzales as one of the White House staffers who discussed what to do with the CIA tapes, made between 2003 and 2005, of the interrogations of two high-level al-Qaida suspects. The eventual destruction of the tapes is the subject of a criminal investigation by John Durham of the Connecticut U.S. Attorney’s office and could give rise to charges of obstruction of justice because the tapes were relevant to congressional investigations and pending litigation.

Gonzales certainly appears to have allowed Cheney and Addington to have their way on torture and wiretapping–and to have done the same for Rove on the U.S. attorney firings. By then, Gonzales was attorney general. In that job, he gave at best obfuscating and at worst false testimony to Congress about the U.S. attorney firings, claiming publicly that he wasn’t involved, even though e-mails showed he’d been briefed at least twice about the dismissals. He may have perjured himself about several matters, including attempting to coordinate testimony with Monica Goodling, for which he is under investigation by the DoJ inspector general. He also testified that there was no serious disagreement inside the Bush administration about the warrantless wiretapping pursued under the Terrorist Surveillance Program. This has now been refuted by FBI Director Robert Mueller, former OLC head Jack Goldsmith, and former Deputy Attorney General James Comey. Gonzales weaseled on torture before Congress, too. Eventually, his inability to recall which of his fibs was which led to his resignation. To top it off, he was also attorney general during the 2006 hiring cycles for the honors program and summer internships that a new IG’s report blasts for illegal partisanship.

Case for prosecution: If Gonzales’ War Council role could be proved, it’s possible (if still unlikely) that he could be tried for war crimes. The easier route would be to charge him with making false statements to Congress in his testimony on the U.S. attorney firings or the warrantless wiretapping program. Did he lie? Did he try to influence Goodling’s testimony? We await the inspector general’s report. Ditto for the results of John Durham’s criminal investigation into the destruction of the CIA tapes.

Case against: The attorney general can claim executive privilege from testifying further about the explanations behind the firings, as the president’s ability to fire whomever he chooses extends to his top officers. Also, virtually every account of Gonzales’ performance as both White House counsel and attorney general have him rubber-stamping whatever David Addington wanted.

Monica Goodling
Department of Justice/White House
White House liaison and senior counsel to Alberto Gonzales
Implicated in: U.S. attorney firings and politicized hiring

Goodling admitted to the House judiciary committee that she had “gone too far in asking political questions of applicants for career positions” at the Justice Department and that she had checked up on the political affiliations and financial contributions of applicants. This, she told Congress, resulted in the rejection on political grounds of no “more than 50” applicants.

Goodling is also implicated in the congressional testimony crackup related to the U.S. attorney firings. In May 2007, she denied directly contributing to the list of attorneys to fire. But e-mails show that she was privy to the discussions about replacing H.E. Cummins III, the U.S. attorney in the eastern district of Arkansas. Goodling has also caused trouble for her superiors: She testified about an “uncomfortable” conversation with Gonzales in March a few weeks before she resigned, intimating that he’d tried to influence her testimony improperly by talking to her about how the firings went down and asking whether she agreed with them. A month before Goodling said this, Gonzales told Congress that he had not spoken with any other witnesses. Goodling also said that the White House was involved in the firings, and that Paul McNulty lied when he told Congress he didn’t know about that involvement.

Case for prosecution: Goodling’s denial of direct involvement in the firings appears false. For example, in June 2006, Goodling e-mailed Justice Department Chief of Staff Kyle Sampson to say that “we are now executing this plan,” referring to the replacement of Cummins with Timothy Griffin, a former aide to Karl Rove. We’ll know more after the inspector general publishes his report about his investigation into the firings.

Case against: To elicit her testimony, Congress offered Goodling limited immunity from prosecution, such that she can be charged only if she committed perjury. Also, given the information she has shared to implicate her superiors, there is the possibility she may, in fact, have been less involved in hiring and firing decisions than others in the department–or that her role may be to help catch bigger fish.

William J. (Jim) Haynes II
Department of Defense
General Counsel
Implicated in: coercive interrogation

Jim Haynes was another member of the president’s “war council,” according to Jack Goldsmith, former Justice Department official. Haynes drafted an “action memo” in December 2002 authorizing 15 new interrogation techniques, including hooding, stress positions, forced nudity, sensory deprivation, terrorizing with dogs, and exposure to extreme temperatures. The memo also declined to authorize three others (including water-boarding) but refrained from calling them illegal. In addition to approving these techniques, Haynes allegedly ignored warnings from numerous military lawyers that the proposed practices were illegal. These include Alberto Mora, general counsel of the Navy, who said that the techniques approved by Rumsfeld “could rise to the level of torture.” Haynes also scuttled an investigation by Jane Dalton, legal adviser to the chairman of the Joint Chiefs of Staff, into the legality of the techniques, thus obstructing efforts to revisit the decision to torture.

Case for prosecution: Haynes may have deliberately sought inferior legal analysis from Diane Beaver, green-lighting the proposed torture techniques, and then ignored masses of more sophisticated legal advice to the contrary. Or else he relied on the OLC’s so-called torture memos as a legal rationale to radically depart from the accepted definition of torture. In his testimony before Congress, he disavowed reliance on OLC, saying instead that the push for legal approval of torture came from aggressive military attorneys at Guantanamo.

Case against prosecution: The difficulty of prosecuting lawyers for relying on substandard legal advice or even for deliberately seeking it out. Haynes has attempted to distance himself from others–including Beaver–for the actual advice given. Without evidence that he knowingly conspired to receive and pass on bad legal advice, it’s hard to see where the charges against him would come from.

Paul J. McNulty
Department of Justice
Deputy Attorney General
Implicated in: U.S. attorney firings

As the second in command to Gonzales, McNulty is also tied up in firings. Most damningly, Justice Department spokesman Brian Roehrkasse has said that Republican New Mexico Sen. Pete Domenici called McNulty to discuss firing U.S. attorney David Iglesias. Two days before several attorneys were fired in December 2006, McNulty e-mailed Sampson to say he was “skittish” about firing Nevada U.S. Attorney Daniel Bogden, whose file he had not read.

Case for prosecution: As with several of his colleagues, McNulty’s real problem is his congressional testimony. In February 2007, he testified that “performance-related” problems led to all of the U.S. attorney firings. But both Monica Goodling and Kyle Sampson have contradicted McNulty’s statements to Congress.

Case against prosecution: There is a lack of documentation on reasons the attorneys were fired. McNulty’s e-mails do not reveal his active participation so much as his awareness of the discussions about dismissal: It is still unclear to what extent he was informed by Sampson and Goodling that the firings might not have been based solely on performance.

Harriet Miers
White House
White House Counsel
Implicated in: U.S. attorney firings, CIA tape destructions

Harriet Miers was involved in the earliest stages of the attorney firings. Documents and testimony indicate that Miers raised the idea of firing all 93 U.S. attorneys with Justice Department Chief of Staff Kyle Sampson in early 2005. Newly minted Attorney General Alberto Gonzales reportedly nixed the idea of a mass dismissal, but Miers remained involved in ongoing discussions of a more targeted firing. In March 2005, Sampson sent Miers a list ranking the 93 prosecutors according to their loyalty to the administration.

Miers has a starring role in the paper trail that the investigation into the firings has since turned up. She remained in regular contact with Sampson throughout.

In addition, CIA and DoJ officials have Miers as one of the White House staffers who discussed what to do with the CIA tapes, made between 2003 and 2005, of the interrogations of two high-level al-Qaida suspects. The eventual destruction of the tapes is the subject of a criminal investigation by John Durham of the Connecticut U.S. Attorney’s office and could give rise to charges of obstruction of justice because the tapes were relevant to congressional investigations and pending litigation.

Case for prosecution: Like Karl Rove and Joshua Bolten, Miers has ignored congressional inquires under the aegis of executive privilege, winning her a contempt charge from the House in February 2008. Of the three, Miers is the most implicated by the e-mails and other documents that have come to light in the investigation. She also has to worry about being tied to the destruction of the CIA tapes in John Durham’s criminal investigation.

Case against prosecution: President Bush forbade Miers from testifying based on his administration’s expansive theory of executive privilege. The contempt charge brought against Miers is the first to be levied against a White House official instructed to keep quiet by the president, as far as we know. So there is no precedent for her situation.

Colin Powell
State Department
Secretary of State
Implicated in: Coercive interrogation

Powell was a member of the “principals committee” that, ABC reports, met in the White House repeatedly to discuss and approve specific torture tactics, including water-boarding and physical assault.

Case for prosecution: If he played a decision-making role in advocating torture, Powell could be said to have caused a “grave breach” of the Geneva Conventions and so to have committed war crimes.

Case against prosecution: There isn’t enough known evidence linking Powell to the abuses to support a criminal prosecution.

Condoleezza Rice
White House, State Department
National Security Adviser, Secretary of State
Implicated in: Coercive interrogation

Rice was a member of the “principals committee” that, ABC reports, met in the White House repeatedly to discuss and approve specific torture tactics, including water-boarding and physical assault. Rice was allegedly “decisive” on this issue, says ABC, telling the CIA, “This is your baby. Go do it.”

Case for prosecution: If she played a decision-making role in advocating for torture, Rice could be said to have caused a “grave breach” of the Geneva Convention and so to have committed war crimes

Case against prosecution: There isn’t enough known evidence linking Rice to the abuses to support a criminal prosecution.

Jose Rodriguez
Head of Clandestine Services
Implicated in: coercive interrogation

Rodriguez “ultimately ordered” that tapes of the interrogations of two high-level al-Qaida suspects be destroyed, according to the New York Times. In her book, Jane Mayer seconds this. CIA officials have argued that Rodriguez acted with the knowledge and implicit approval of lawyers in the Justice Department and the White House. “He had a green light to destroy them,” Rodriguez’s lawyer says of his client. CIA and DoJ officials have named Harriet Miers, Alberto Gonzales, and David Addington as having participated in discussions about what to do with the tapes. It’s not clear yet what they said because the matter is the subject of a DoJ inspector general investigation that is still pending.

Case for prosecuting: The relevance of the tapes to ongoing litigation and congressional investigations is clear. The potential filing of charges awaits the conclusion of John Durham’s criminal investigation. If the facts surrounding the decision to destroy the tapes establish that Rodriguez was responsible, he could be charged with obstruction of justice.

Case against prosecuting: At this point, there is a lack of clear evidence about the decision tree. As with many other scandals, Rodriguez may have believed himself to be following orders from above that were written in invisible ink.

Karl Rove
White House
Deputy Chief of Staff
Implicated in: U.S. Attorney firings

E-mails and reports implicate Rove at several points in the timeline of the U.S. attorney firings. While the White House originally pinned the idea to fire the federal prosecutors on Harriet Miers, e-mail messages indicate that Rove was involved in the discussions in early 2005. Rove’s fingerprints are most evident in the case of New Mexico U.S. Attorney David Iglesias, whose firing had been sought by several prominent Republicans in the state. Tim Griffin, the replacement for another of the dismissed prosecutors, was a former Rove aide in the White House.

Rove is now in the same boat as Harriet Miers and Josh Bolten, all three of whom have ignored congressional subpoenas for information and documents related to the dismissed prosecutors.

Case for prosecution: After President Bush blocked Rove from giving any sworn testimony, citing his administration’s broad theory of executive privilege,

the Senate judiciary committee found Rove in contempt in late 2007. Iglesias told MSNBC he believes Rove has knowledge of illegal activity–specifically, interference with a federal criminal investigation–that is driving his refusal to testify.

Case against: The contempt case against Rove isn’t likely to go much of anywhere before the Bush administration comes to an end. And the facts that are known about Iglesias’ firing aren’t enough to criminally prosecute Rove.

Donald Rumsfeld
Department of Defense
Secretary of Defense
Implicated in: coercive interrogation

Donald Rumsfeld approved Haynes’ memo authorizing interrogation techniques for Guantanamo. He famously appended a handwritten note about forcing prisoners to stand for long periods: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?” That memo, and the techniques it allowed, eventually migrated from Guantanamo to Afghanistan and to Abu Ghraib. As reported by ABC News last April, Rumselfeld also served on the “principals committee” that met in the White House repeatedly to discuss and approve specific torture tactics, including water-boarding and physical assault.

Case for prosecution: As secretary of defense, Rumsfeld was ultimately responsible for the change in interrogation policy at Guantanamo and for its migration to Iraq and elsewhere. Hundreds of prisoners have been tortured and as many as 100 have died while in U.S. custody. Command responsibility suggests that Rumsfeld is accountable for these acts.

Case against prosecution: A suit filed against Rumsfeld on behalf of former prisoners in Iraq and Afghanistan was dismissed in 2007 because “constitutional protections did not apply to Iraqi and Afghan nationals in U.S. custody in those countries,” and U.S. officials were immune from lawsuits stemming from actions taken “within the scope of their official duties.” Efforts to prosecute Rumsfeld criminally will run into difficulties linking him with evidence of deliberately and knowingly breaking the law as opposed to merely relying on bad legal advice.

D. Kyle Sampson
Department of Justice
Former Chief of Staff to Attorney General Alberto Gonzales
Implicated in: U.S. attorney firings

Sampson is the Justice Department official who laid out a five-step plan, in a November 2006 e-mail, for carrying out the U.S. attorney firings. Sampson also sent a March 2005 e-mail to Harriet Miers ranking all U.S. attorneys’ “loyalty to the President.” He later testified that “political” and “performance-related” causes for dismissing a U.S. attorney were inseparable. In his March 2007 testimony to Congress, Sampson contradicted Gonzales’ claim, two weeks earlier, that Sampson had not given the attorney general information about the firing of the prosecutors.

Case for prosecution: Thanks to the e-mail trail he left behind, Sampson could be prosecuted for lying to Congress. For example, he told the Senate judiciary committee in March 2007 that he did not have any replacement attorneys in mind for the ones on his firing list. This contradicts a list of possible candidates that he e-mailed to Harriet Miers in January 2006.

Case against: His lawyer, Brad Berenson, has said that, technically, Sampson’s testimony was true: “In December 2006, when the seven U.S. attorneys were asked to step down, no specific candidate had been selected to replace any of them, and Kyle had none in mind.” With no written proof dated around the time of the actual firings, Berenson’s equivocating could get Sampson off the hook.

Bradley J. Schlozman
Department of Justice, Civil Rights Division
Implicated in: politicized hirings

During his time in the Civil Rights division from 2003 to 2005, including five months as its acting head in 2005, Schlozman allegedly kept a close eye on the allegiance of his employees to the Bush administration, often questioning whether someone was still “loyal.” Schlozman told the Senate judiciary committee that he recruited from conservative groups and advised job applicants to strike references to Republican causes from their résumés so that more liberal lawyers in the department would not turn them down. Of his 14 hires, half were from the Federalist Society or the Republican National Lawyers Association, compared with none out of the eight hires in the previous two years. In one 14-lawyer section of the Civil Rights Division, Schlozman transferred out three minority women (of African-American, Jewish, and Chinese descent) and then hired six whites and one Asian. According to other lawyers in the division, he told a colleague that he wanted to “make room for some good Americans.” Schlozman denied this comment in his testimony to Congress.

Case for prosecution: Schlozman may have broken civil-service laws that prohibit discrimination based on “political affiliation” or “politics.” But those laws can’t serve as the basis for a criminal prosecution (though breaking them can lead to lawsuits like the one already filed and, in theory, to disbarment). So the best route for nabbing Schlozman is to get him for misleading Congress about the politicized hirings and his role in them. Justice Department lawyers filed a grand-jury referral in June to investigate possible perjury in Schlozman’s congressional testimony.

Case against prosecution: Officially, the minority women fired from the Civil Rights Division were told that the department’s needs or their performance was the cause of their dismissal. No paper trail has been made public; without that, it’s hard to know or prove that Schlozman lied. (On a separate front*, he has potential false-statement problems based on his yearlong term as Missouri’s U.S. attorney in 2006.)

*SIDEBAR: Schlozman told a Senate committee that the head of the Election Crimes Branch in the Public Integrity Section of the Criminal Division “directed” him to bring a controversial voter-registration-fraud suit in Missouri right before the 2006 midterm elections**. The suit defied Justice Department instructions to hold election-crime cases until after an election so as not to influence the result. Later, Schlozman “clarified” his statement by taking “full responsibility” for the decision to bring charges.

**CORRECTION: The original sentence incorrectly stated that Schlozman’s supervisor directed him to bring the voter registration fraud suit. The DoJ lawyer who Schlozman says directed him was not his supervisor.

John Yoo
Department of Justice
Office of Legal Counsel
Implicated in: coercive interrogation, wiretapping.

Yoo wrote part or all of the Department of Justice memos of September 2001, August 2002 (with Jay Bybee), and March 2003 that laid the legal groundwork for coercive interrogation, which decreed, most famously, that interrogation tactics are out of bounds only if they cause “severe physical pain” amounting to “death, organ failure, or the permanent impairment of a significant bodily function.” (Yoo has testified to Congress that he took this definition of severe pain from a federal health statute. Jack Goldsmith, who withdrew some of Yoo’s memos when he took over as head of the OLC, calls this “definitional arbitrage” so clumsy that it “didn’t seem even in the ballpark.”) Yoo’s memos, in effect, unilaterally suspended the Geneva Conventions with regard to the Guantanamo detainees. He was also the author of the still-secret memo that gave legal justification for warrantless wiretapping by the National Security Agency. According to Goldsmith, Yoo was also part of the five-member “War Council” that helped shape the administration’s policy on torture.

Case for prosecuting: As the primary legal architect of the administration’s most controversial moves in the war on terror, it’s amazing how many unsavory pies Yoo had a finger in. If he did take part in the War Council, he may have helped implement his legal opinions as well as write them.

Case against: It’s unusual to prosecute a lawyer for giving legal advice, however unsound. At the same time, Yoo is under investigation by the Office of Professional Responsibility at DoJ to determine whether he violated his professional responsibilities and the code of professional ethics for lawyers. He is also the named defendant in a lawsuit brought by Jose Padilla, who was convicted of lesser crimes after being held as an accused “dirty bomber.” Still, for now–and perhaps unless one of the alleged War Council members talks–there’s a lack of solid evidence about what exactly that group did or how Yoo participated in it. In testifying before Congress in June, Yoo denied any policymaking role on interrogation.

David Addington
Office of the Vice President
General Counsel and Chief of Staff
Implicated in: coercive interrogation, wiretapping, destruction of the CIA tapes

Jane Mayer writes that “[w]ithin minutes of the September 11 terrorist attacks, Addington began to assert himself as the war on terror’s indispensable man.” He had no direct authority on national security matters, yet it’s now clear that he injected himself into–and at the top levels of–the inner circle that decided how to question and treat the Guantanamo detainees and how to collect intelligence at home and abroad. Jack Goldsmith gives him a seat on the five-member War Council that may have helped set policy on what constitutes torture and when such tactics should be used. Mayer casts him as the senior official who urged Yoo to make the arguments that undergird the torture memos. He allegedly laid the groundwork for scrapping the Geneva Conventions. According to Mayer, he was key in overriding the objections of top military lawyers who expressed dismay at the turn the administration was taking.

Addington also pushed hard for the National Security Agency’s warrantless wiretapping program. Mayer says that Addington kept the legal authorization for the program secret from the NSA’s own lawyers. She casts him as an enemy of the legal constraints on executive power in the 1978 Foreign Intelligence Surveillance Act and quotes him as saying, “We’re one bomb away from getting rid of that obnoxious court” about the FISA court that reviewed the government’s applications for surveillance warrants.

In addition, CIA and DoJ officials have named Addington as one of the White House staffers who discussed what to do with the CIA tapes, made between 2003 and 2005, of the interrogations of two high-level al-Qaida suspects. The eventual destruction of the tapes is the subject of a criminal investigation by John Durham of the Connecticut U.S. Attorney’s office and could give rise to charges of obstruction of justice because the tapes were relevant to congressional investigations and pending litigation.

Case for prosecuting: Addington probably led the effort to approve coercive interrogation that crossed the line into torture, despite the United States’ treaty obligations. If anyone were to go down for it, by all rights it should be him (if not Bush and Cheney themselves). Not only did he push for the change in abusive interrogation, but he browbeat and abused everyone who tried to remedy the rules. If the criminal investigation ties him to the destruction of the CIA tapes, he could face criminal charges for eliminating that evidence.

Case against prosecuting: There’s no evidence to show that Addington deliberately twisted the law. And unless someone else in the War Council starts spilling or a smoking-gun document is found, that’s not likely to change.