Another Good Reason for Not Prosecuting the "Bushies"

There has been considerable debate of late as to whether the incoming Obama administration should prosecute members of the Bush administration who were responsible for violating civil liberties and human rights. In addition to the theoretical arguments that have been offered against such prosecutions, let me offer a practical one based on my experience as criminal defense attorney.

There is almost no possibility that such prosecutions could succeed. A fairly selected jury would almost certainly acquit. The defendant would simply present the jury with the classified intelligence that demonstrated the extraordinary threats facing the United States. If the government refused to declassify these threat assessments, the defendant would have a strong case for dismissing the charges against him, because he was being denied his right to present relevant evidence under the Sixth Amendment. Most jurors would be extremely sympathetic to the Jack Bauer, "Do whatever it takes to stop terrorism" argument.

On the opening segment of 24, Bauer was being grilled by a sanctimonious congressman about using torture to stop an act of mega-terrorism. His response -- "let the people judge me" -- was more truth than fiction.

A defendant in such a case would also invoke Thomas Jefferson who strongly favored breaking the law in extreme cases of national security, Abraham Lincoln, who repeatedly broke the law, and Franklin Roosevelt, who not only broke the law but ordered the racist detention of more than a hundred thousand Japanese-Americans.

An acquittal in such a case would be seen by many as a vindication of the Bush policies, which is certainly not something those who advocate prosecution would welcome. So be careful what you ask for; you may get it.

Comments

[DocBaker]

I would like to a many of these people prosecuted and jailed, including Bush. Nonetheless, I suspect that Dershowitz is correct in his assessment of the practicality of making this happen, particularly if the government would not declassify the relevant threat assessments.
However, both the new Justice Department and a separate congressional committee should thoroughly investigate these matters, and make their findings public. If they conclude that prosecutions would likely be unsuccessful, they should also make public the details of their reasoning.
As for the possibility that "An acquittal in such a case would be seen by many as a vindication of the Bush policies" then so be it. We cannot let that possibility determine whether to prosecute.
As for the impeachment, despite the fact that Bush wouldn't be removed from office, I would favor impeachment if there were a reasonable chance of success or if new information would be revealed during the proceedings. This would, at minimum, be of great symbolic value. Moreover, if impeachment were the only way to make formerly secret information public, this alone would be of valuable.
Prosecutors frequently choose not to prosecute cases that they are confident they would lose. If they make this determination in the aforementioned cases, then at least the public would know the details of their reasoning. Such a decision would be sad indeed, but at least we would have given it serious consideration and made that consideration public, rather than sweeping it under the rug.

[sixx]

Mr. Dershowitz has reason to defend Bush and other torture defenders,

Holder: 'Waterboarding is torture' and not even the president can declare it an acceptable tactic'

[schicklett3]

Bush and crew will never be prosecuted - they covered their tracks. They never left a "blue dress."

[ObjectiveRealist]

I would like to see Bush and Cheney's defense try to use an 'imminent threat' scenario in court. Any professional interrogator would testify for the prosecution that torture is useless, except for coercing false confessions. That such advice was not available to the the White House, if they asked, is unimaginable. The '24' defense would be laughed out of court, and ensure unanimous conviction.

[
A fairly selected jury would almost certainly acquit. The defendant would simply present the jury with the classified intelligence that demonstrated the extraordinary threats facing the United States.
]

Weighing those risks is just part of the job, and not "extraordinary" for presidents and vice presidents. Being incompetent does not excuse torture.

[brandosteele]

I agree with this thought. I too am unsure of the motives behind Mr. Dershowtz's assertion of thought. I also have respected Mr D, but feel we should take the chance & bring them to trial. Ignore?

[mulegino]

Dershowitz's historical analogies get " worser" and "worser" all the time.
Lincoln faced a civil war (many cannonades of which could be heard in Washington D.C. itself) that could have resulted in the dissolution of the United States-so Lincoln's actions are sui generis, in a sense.
One of FDR's worst actions was the cruel and unconstitutional expropriation and imprisonment of the Nisei. There was no reason for this other than paranoid xenophobia and the politics of fear-and it will remain a black spot on FDR's great-but flawed legacy forever.
Dershowitz attempts to turn the constitution into W's " goddamn piece of paper"-that is, a noble sounding document, which may serve from time to time for the invocation of pompous platitudes by politicians, but emasculated of all of its provisions that actually protect individuals from an unrestrained, coercive and capricious tyrrany,and from which a dictatorial executive can pick and choose what it will and will not honor.
The "war on terror" is really a "war of terror" on American rights and liberties, and its chief instrument is the use of fear to subvert the very bulwark of "freedom"-the U.S. Constitution

[JJennifer]

I notice now that Obama has been shown the classified information that the rest of us are not privy to, his tune and tone are noticeably different thatn they were on the campaign trail. He will not withdraw from Iraq, and I doubt he will close Guantanamo because his only option then would be to release those terrorists into our general population. Consider also if Michelle and the two girls were kidnapped by terrorists and we had in our custody one man who knew where they were and how to rescue them. Would we say to him, "Sorry, Mr. President, we don't torture. Don't worry, you are a young man. You can marry again." Bush did the most important thing our constitution demands of our president. He protected us. As long as some of you view that as tyranny, we will never agree on what is in the best interests of the country.

[ObjectiveRealist]

quote:
Bush did the most important thing our Constitution demands of our President. He protected us.
/quote

That could be true, had he been Inaugurated 12 September 2001.

In the real world, he ignored his top terrorism advisor from 20 January 2001 to 10 September 2001, and totally disregarded his 6 August 2001 Presidential Daily Brief: "Bin Laden Determined To Attack Inside United States". I defy you to cite a more despicable act of negligence by anybody, ever.

[lapoutlander]

"a practical one based on my experience as criminal defense attorney."

One thing I learned from a graduate of law who not needing the money decided not to become a lawyer;

"Lawyers go to law school not to learn the law but to learn how to bend it or manipulate it so their clients do not have to follow the law". (I soon saw what he meant in action in a conference).

So therefore you saying that prosecutions would fail is basically saying that they are mostly guilty. And on that one point then we can agree.

[FilthyHarry]

Mr. Dershowitz, as intelligent and accomplished as you are it is surprising that you don't see the value the trials would have in themselves regardless of the outcome. Primarily the lesson needs to be taught that 'no one is above the law'. Whether or not the trials resulted in guilty verdicts, the lesson would stand. In addition, due to the Bush administration's habit of extreme secrecy, our country could seriously use a little light shone into the darker corners of his presidency.

Some will say that we need to look forward, not backwards and attempt to heal. To that I say, President Clinton heeded those calls, declining to investigate the various shenanigans of Regan/Bush and look how the Republicans and the right-wing in general thanked him.

[maddie0001]

How do we know Bush stopped an act of 'mega-terrorism'?

He takes credit for 'protecting the homeland for seven years' but Clinton protected us for seven year (February 93 til the end of his term) without trashing the constitution, creating a million enemies and wrecking the economy.

What would have happened on 24 if it turned out Jack Bauer was shown to be delusional?

[babyboomerorig]

For all who watch "24" and agree with it, I pity you.

Let's wait to see who Bush pardons before there are any discussions on whether or not to investigate this administration. Why would Obama's team tip their hand without this information?

[not going2take it]

I have always held Alan in very high regard.
Comments like his disappoint me.

Hey C'mon "your a smart guy", lets' come up with
some creative solutions, some ideas to make
a difference. Don't just *roll-over­-so-easy*,
lets fix this, not just accept it.

[GiancarloJones]

As soon as you reference a television show as a plausable defence your credibility vanishes. I believe there will be no trials for any of these criminals because at the eleventh hour Bush will pardon Chaney, Rumsfeld, et al. You heard it here first.
Point of Constitutional law: Can a President pardon himself?

[runswithscissors]

"His response -- "let the people judge me" -- was more truth than fiction. "

So is this how we run criminal investigations now? Then why not overturn John Gotti's conviction? Charles Manson has tons of admirers out there, so lets free him too? And how about the shoe thrower...he's a hero to millions, so can we let him out of the torture chamber he's currently occupying? Seriously , this has to be the dumbest post I've read in a LONG time.

And BTW, why are all the right wing loonies suddenly obsessed with 24? I knew their grasp on reality was a little shaky, but I figured they could at least differentiate between real life and bad TV shows.

[maddie0001]

The jail guards had a birthday party for the shoe bomber. The Iraqis are just waiting for America to get distracted by the next shiny object before they let the guy go.

[CyrusBeaucephus]

'24' is like cheap porn for wingnut couch potatoes.

[peterg76]

They can plea-bargain if it's tactically necessary, but at least investigate the crimes first, and there are ways to handle classified evidence if necessary. Even if a jury won't convict an ex-president, there were many enablers who can be prosecuted and then at least in future the president will have to face officials refusing to carry out illegal orders.

[GingerB]

Don't assume most jurors are as pro-torture as you, Dershowitz. Turn off 24. Jack Bauer is not real nor are the silly situations the show poses.

It's no stretch to see why you're advocating no prosecution. BushCo was a great friend to your main concern, Israel.

[slarabee]

Ah and a shred of truth. I guess AIPAC members believe nothing is more important than Israel. Not the law, not the truth, and certainly not America.

[NotProvenGuilty]

Alan, you may well be right, predictively. But your conclusion is wrong, ethically. Moreover, you're focusing on short term consequences like political embarrassment. What about long term consequences like the status of rule of law? The fact is, Bush flouted laws, some quite clearly. And these are not B.S. things like lying under oath about matters personal and unrelated to the substance of an inquiry (Clinton). Your position is hollow I'm afraid.