ONLY A FEW years ago, it seemed the slightest suggestion of malfea- sance by a presidential administration -- allegations of tampering with a minor administrative office, say, or indications that a cabinet secretary might have understated the amount of money given to a former girlfriend -- could trigger a formidable response from the other two branches of government: grand juries, special prosecutors, endless congressional hearings, even impeachment proceedings. Some of that auditing, especially during the Clinton administration, went too far. Yet now the country faces a frightening inversion of the problem. Though there is strong evidence of faulty and even criminal behavior by senior military commanders and members of President Bush's cabinet in the handling of foreign detainees, neither Congress nor the justice system is taking adequate steps to hold those officials accountable.
Investigations by the Army, including one completed last week, could result in prosecution or disciplinary action for up to 50 persons involved in the abuse of Iraqi prisoners. But almost all are low-ranking soldiers; the most senior officer to be targeted is a female reserve brigadier general, who plausibly argues she has been scapegoated by higher-ranking officers. The military investigations and a separate probe by a panel picked by Defense Secretary Donald H. Rumsfeld have issued reports making it clear that senior commanders in Iraq and the civilian leadership at the Pentagon also bear specific responsibility for an affair that has gravely damaged the U.S. mission in Iraq and American prestige around the world. But no court, prosecutor or disciplinary panel is even considering action against these top officials. Only one more congressional hearing, by the Senate Armed Services Committee, is planned.
What's particularly troubling about this breakdown of checks and balances is that some of the most disturbing behavior by senior officials has yet to be thoroughly investigated. For example, Mr. Rumsfeld is now known to have approved, in December 2002, the use of dogs to frighten detainees under interrogation. That technique, which was immediately adopted in Afghanistan and later in Iraq, was described by Army Maj. Gen. George R. Fay as "a clear violation of applicable laws and regulations." Mr. Rumsfeld has also publicly acknowledged that he ordered that some prisoners in Iraq not be registered with the International Red Cross, an unambiguous violation of Army regulations and the Geneva Conventions. Yet Mr. Rumsfeld has never been called upon to explain these actions to legal investigators or to Congress.
The former commander in Iraq, Lt. Gen. Ricardo S. Sanchez, also issued an interrogation policy allowing the illegal use of dogs. Subsequently, he testified under oath to Congress that he had never approved this or other illegal measures listed above his signature. No formal criminal or administrative action against him is under consideration. Former CIA director George J. Tenet, according to Mr. Rumsfeld, requested that detainees in Iraq be concealed from the Red Cross. According to Gen. Fay's investigation, CIA operatives abused detainees, introduced improper interrogation methods to the theater and contributed substantially to the breakdown of discipline at Abu Ghraib. Yet the only investigation of the agency and its leaders is being conducted by its own inspector general.
When the prisoner abuse allegations first became public in May, many members of Congress, including several senior Republicans, vowed to pursue the evidence up the chain of command and not to allow low-ranking reservists to be prosecuted while more senior officials escaped sanction. Yet, as matters now stand, Mr. Rumsfeld, Gen. Sanchez and other senior officials are poised to execute just such an escape. When the scandal began, these leaders told Congress they were prepared to accept responsibility for the wrongdoing. As it turns out, they didn't mean that in any substantive respect. Their dodge shames not only them but the legal and legislative bodies charged with enforcing accountability.