The President has known for more than two years that his Administration has been pursuing policies that could qualify as war crimes under federal and international law.

In a January 25, 2002, memo, White House Counsel Alberto Gonzales advised the President of "the threat of domestic criminal prosecution under the War Crimes Act," a federal statute. He advised Bush to invent a legal technicality--declaring detainees in the "war on terror" to be outside the Geneva Conventions--which, he said, "substantially reduces" the chance of prosecution. Gonzales went further, telling the President that the war on terrorism "renders obsolete Geneva's strict limitations on questioning of enemy prisoners"; he pooh-poohed concerns that abandoning the Geneva standards might endanger US troops.

Let's be clear about what this means: Gonzales was urging--and the President adopted as policy--an end run around federal laws. The War Crimes Act, passed by Congress in 1996, allows criminal prosecution of Americans for actions that violate the rights granted prisoners and civilians by the Geneva Conventions and for "outrages upon personal dignity." It is backed by the full range of federal penalties, up to and including the death penalty. And all treaties, including the Geneva Conventions and the Torture Convention, are likewise the binding law of the land.

From the Gonzales memo, it is clear that the Administration always envisioned taking coercive interrogation beyond Afghanistan. Gonzales repeatedly refers to the broader "war on terrorism"--the phrase Bush uses to cover the war on Iraq. Gonzales specifically advises the President to hold open "options for future conflicts." Thus the scandal is not what George W. Bush referred to as the "failures of character" of a few soldiers at Abu Ghraib. The scandal is that the White House wanted to torture prisoners and get away with it.