Obama, Bush & The War Crimes
Many Washington Republicans and Democrats agree on one maxim for President-elect Barack Obama: This is no time to look back at the past administration's rocky record on executive power and the rule of law.
Republicans caution against protracted, "partisan" investigations. Democrats urge Obama to tackle pressing economic and foreign policy challenges -- if that leaves an unusually powerful executive branch in place, so be it. Both camps are wrong.
Obama must scrutinize and disassemble the post-Sept. 11 imperial presidency, even if he reduces his own power in the process.
The Bush administration opened several lines of attack against the rule of law and the integrity of an independent Justice Department. The scandals are so famous that they've been reduced to shorthand: Abu Ghraib, Guantanamo, NSA, Attorneygate.
No matter what, these incidents will remain a blot on our nation's history. But we can achieve a measure of closure and justice by pursuing legal accountability for anyone involved who broke the law. The initiation of proper legal proceedings -- both investigations and prosecutions -- simply cannot depend on whether the accused are powerful.
The bipartisan immunity lobby, however, insists that route could divide the country. The image of government officials going to jail, they say, is simply unthinkable.
It is a remarkably unserious argument -- as if our laws and Constitution are a distant second to the imagined trauma of watching politicos go to jail like any other lawbreaker. It is especially odd now, coming after several politicians have been prosecuted, defeated and imprisoned on corruption charges.
The immunity crowd has one more card to play. Crimes committed on behalf of national security, they say, are different. On closer inspection, that claim also dissolves into an elitist pitch for the powerful.
The fact is that there are U.S. soldiers sitting in jail right now for what happened at Abu Ghraib.
The question is not whether to prosecute those crimes; that process has already begun. The question is whether the Bush administration correctly prosecuted the people actually responsible for the conduct -- or whether the entire episode was blamed on those low on the chain of command.
Likewise, the politicization of the Justice Department is already a live issue in court. Former Attorney General Alberto Gonzales is currently fighting a civil suit alleging that he politicized the Justice Department. In fact, taxpayers are even footing the bill for his private lawyers. (Up to $24,000 a month, under an arrangement with the Bush administration.)
The new administration, however, cannot afford to sit on the sidelines as private parties fight over Gonzales' sins. There is an overwhelming public interest in accountability for and a complete investigation into the U.S. attorney firings, including, potentially, criminal penalties for any senior officials who broke the law.
As Sen. Arlen Specter, the top Republican on the Judiciary Committee, recently explained, Bush officials undermined the "credibility and effectiveness of the Justice Department" by politicizing their roles. Regardless of who won this election, any new inhabitant of the Justice Department would have to rebuild that credibility. It starts at home. After all, why should citizens have faith in the department's new leaders if their first act is to join in the whitewashing abuse by their predecessors?
The New York Times recently captured this problem: "Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor's tenure."
This is one time, however, that the new president cannot afford to look like every other self-serving chief executive. Obama can show that America's promise of equality not only means that anyone can reach the highest office in the land -- it also means that everyone is equally subject to the law.
Experts and leaders in both parties herald the work of the 9/11 Commission, which bored down into a period many would rather not relive. Now what we need is a Response to 9/11 Commission -- a subpoena-powered investigation of the torture, rendition, detention and spying that was presented as an essential response to terrorism. Obama should also assign a special prosecutor to explore the related crimes and take necessary action, independent of the new attorney general's agenda.
Once the legal process is complete, of course, the president retains the right to commute or pardon convicted criminals. In some cases, there may be good reason to do so. But under the rule of law, there is never a reason to immunize government officials in advance, removing the most critical check on the power they wield in our name. The past eight years reveal the grave costs of that approach, and it is past time for a change.
--
Ari Melber writes a regular column for Politico, where this was first published.
Follow Ari Melber on Twitter: www.twitter.com/AriMelber
Loading comments…
Want to reply to a comment? Hint: Click "Reply" at the bottom of the comment; after being approved your comment will appear directly underneath the comment you replied to
Correct me if I am wrong but the people who wish to see Bush not held accountable or responsible would not be the same people who supported the impeachment of Bill Clinton or the people who did not want Nixon to pay for his crimes now would they?
To fail to investigate, and prosecute where appropriate, the multiple crimes of the Bush administration committed in our name and financed by our taxes, would be to totally abrogate both the Constitution and the Republic. The arguments against such a pursuit are specious, and reflect either ignorance or devious self-serving. Melber has it exactly right.
Yet another post where reality is completely ignored.
No matter the merit of the prosecutable offenses committed by this administration (and that is one long and sordid list), reality demands two considerations.
First, COULD a conviction ever be obtained. Everyday, in prosecutors offices around the country, cases are dropped because they aren't likely to result in a conviction. Doesn't mean they don't think the crime happened... just that they don't think they will win. It takes a lot to win a case, and the higher the stakes, the harder it gets. Add in executive privilege, national security and governmental immunity and these cases amount to wild goose chases.
Second, assuming a win was even possible, you have to look at the cost of that win. If the cost for winning these cases is losing all of his accrued goodwill to get things done, if it means polarizing Washington and ensuring gridlock for the rest of his term, and if it dooms all of his proposed changes to an early political graveyard, then the cost is NOT worth being able to say "See, that bastard finally got his".
The time for oversight was WHEN these crimes were being committed... but congress was too gutless and wimpy to do anything. Going after it now will be perceived by most as petty, backwards looking and oblivious to the challenges now facing us.
Duly noted. However, in accordance with the law(s) of the land most of those capable of pursuing prosecution claim to be "upholding", ignoring a crime b/c you don't see a "likelihood" of a win legitimizes the crime, therefore perpetuating similar acts in the future. Furthermore, polarization in exchange for being the adult and doing the job for which one was elected is a great trade, if you ask me. If an elected official would really sabotage necessary, effective, and helpful proposals based on hurt feelings. Talk about petty. THROW. THE BUMS. OUT.
Amen.
he is a low professor ... Like most of us and even the Democrat leaders,, there are no crimes to charge him with , except of course those heinous crimes of keeping the USA safe from terrorism these past 7 years
He is a constitutional law professor. He's going to do most of this but he is also a pol, gotta think it through first.
J
" Obama should also assign a special prosecutor to explore the related crimes and take necessary action, independent of the new attorney general's agenda."
I agree wholeheartedly; this could be done low key, a special prosecutor digging in and doing the deep investigation while all of the upfront focus is on the economic recovery efforts. Obama & crew have already stated that a primary goal is to realign perceptions abroad concerning the US, and a deep, thorough investigation [and hopefully prosecution] of the BushCO FUBAR key players and proponents would go a long way towards accomplishing that goal.
But the thing that bugs me the most is the question HOW MANY PRESIDENTS HAVE GIVEN UP POWER? How many have vigorously the investigation and prosecution of former top level US officials?
I have a sinking feeling about this issue; unfortunately, I feel certain that I would have the same feeling no matter who is in the Oval Office--our corrupt pols in DC have convinced us that such isn't doable [and I'm sure that's a collective defensive move, just in case].
Part 2.
The country would not be in such dire need of repair in the first place if the current Whitehouse residents thought they would be prosecuted for their crimes. If we don't want this type of history to be repeated over and over in the future, we must make our leaders tremble before the law just as its poorest citizens do. Punishing these leaders may not seem so urgent now because Americans have finally awakened and elected a Democratic President and Congress, but Americans have a short memory. I guarantee this history of shameless disregard of the law will repeat itself in the future if we don’t send a strong message right now.
Mr. Obama will seal his Legacy with this issue: if he does not transparently cause investigations and, where legally justifiable, prosecutions, he will do a "Jimmy Carter". If he immeadiately does, so, he will not only serve two terms, he will go down in History as Lincoln' Lincoln.
We wait; we will see.
if president Obama pulls a Pelosi and declares accountability and justice to be "off the table" it will be, early on, the fatal error of his presidency, having rejected the single real opportunity that the American people and, indeed, the World will ever have to expose, repudiate and punish the Crimes Against Humanity committed by this administration, in the name of "We the People", over the last eight years
Halliburton has built a brand new $350 million state-of-the-art prison facility on the shores of beautiful Guantanamo Bay, Cuba and, with all due respect, i would like to suggest to President Obama that he make good use of it, as intended, to lock up those who are found to be truly guilty of terrorism and treason against this nation and its people, beginning on that awful day of September 11, 2001
The Bush/Cheney corp. will sail into retirement on taxpayer funded pensions admitting no wrong, and never having to pay for their crimes. Those who think that Obama will be a voice of law and order or Constitutional integrity will be feeling very bitter and cheated this Spring. Why? Because rhetoric is cheap, but actions tell a more truthful side of a man's character. No President likes to give up power.
Obama has consistently sided with Bush/Cheney on key issues while in the Senate.
*Voted with Bush to continue the Iraq war
*Voted with Bush to give retroactive immunity to the illegally spying telecoms
*Voted with Bush for the reauthorization of the Patriot Act to destroy civil liberties + deny habeas corpus
*Voted with Bush for the $700B. bailout of Wall Street thieves
*Vigorously opposed Impeachment of Bush/Cheney for flagrant Constitutional crimes
*Failed to honor his pledge for public financing.
*Palled around with Bush in a recent trip to the WH.
Because no agent of change was selected (neither Ralph Nader nor Cynthia McKinney was elected), we have no right to expect that anything substantive in terms of policy will change in our government under Obama.Electing status quo parties to office only guarantees status quo results.
It is highly unlikely that any kind of investigation of the Bush administration will occur. The leadership of the Democratic Party does not have the will, desire, nor the inner strengh to launch such an effort. Look how they discipline (or fail to discipline) members of their own caucus, namely Joe Lieberman, the now Independent who caucuses with them. If they don't have the strength to take justified action within their own party, how are they going to take on a challenge like investigating a former president and his administration?
We know there is more than enough reason to investigate the Bush administration for criminal wrongdoing; the man really should have been impeached years ago, and probably would have been were he a Democrat with a Republican controlled House. Unfortunately the desire to "look ahead and not backward" was stronger than the desire to uphold the Constitution for Pelosi and Company. So much for a "nation of laws."
Each time these politicians say "oh, lets move on, let's look forward we can't look backward" what they are really saying in effect is to hell with the rule of law; you know, that thing the rest of us are supposed to follow in our everyday lives. The next time any of you get a traffic citation for speeding or something, be sure and tell the citing officer that he needs to look forward, and not backward, because we are in the age of magnanimity.
I think this process of investigations and punishing the ilegalities of the Bush administration with regard to the torture practices, the politicalization of the Justice Department, and the lies that led to the Iraq war is one of the most important things Obama can do. As he wants to heal the economy and disengage from Iraq, I am afraid Obama will not want to be looked at as vindictive by pursuing the Bush illegalities.
Your problem, Ari, is that the people just don't care very much.
If they did, there would be investigations, hearings and the whole work up. I haven't seen any polls, but I'm sure that investigating the outgoing administration isn't high on the people's list.
The people don't really care if some (almost certainly) really bad people were mistreated. They are worried about being two missed paychecks away from insolvency and looking at an economy collapsing all around them.
The people don't care if there might have been some politics involved in a (probably) perfectly legal firing of some US attorneys. They are more concerned that their house is losing value every day and they can't refinance off their ARMs.
Ari, although I disagree with you about the importance of investigating the Bush administration I do admire your passion. I just think you are going to have a difficult time convincing people to agree with you.
Your comment is very inaccurate. All firings of Justice Department attorneys are not legal. If they were fired because they would not bring prosecutions that were motivated solely for political reasons, then their firings are illegal. You think we should use our Justice department to punish political opponents as would have been done in Stalinist Russia?
I don't think you quite got what I was getting at. I will make it a little simpler for you.
No one cares about the US Attorney firings.
The legality of the firings may be up in the air. But my point was ...the people don't care....
i didn't write about the firings, I wrote about the public apathy.
We are a nation of laws - or not
Seems like 'NOT'
We are no longer a nation of laws or even Constitutional Integrity. Law&Order and our Constitutional have been demoted to "Ceremonial Stature" and can be invoked and discussed, but summarilly ignored as is needed. The Executive Class does not live by or abide by laws but exists and operates through power and privelege. Since Bush/Cheney got away with flagrant lies and Constitutional crimes without penalty and Democrats issued no check on executive power and abuse, we should not expect most future presidents to magically abide by limited strictures. The executive branch is now above the law and it is a hard power and privelege for most any politician to relinquish and underuse the power invested in them. Only Ralph Nader had the requistive discipline and integrity to restore order and our Constitution. Since he was not elected, we will labor hard to right our nation but be ground into submission and poverty under the Obama administration.
Natx makes a strong argument for why we shouldn't prosecute. Practically speaking, given all the challenges looming ahead, war crimes trials would be incredibly difficult, and would probably impede progress in important areas (say, remaking our energy sector, health care, and of course this little recession problem).
To do this right, war crimes trials would have to go right to the source of the evil: Bush and Cheney. Doing so would create immense anger and resentment among American right wingers.
But still ... it's the right thing to do. It's a moral investment. And while it would create tremendous internal conflict (a lot like the election of Lincoln 128 years ago!) it could actually present some very valuable opportunities too. "Never waste a crisis" - it would generate a crisis, but it would also create some very interesting openings.
On the international front, an America that was prosecuting the war crimes of Bush/Cheney would have immense political capital. We could leverage the war crimes trial to create a Palestinian State and full recognition of Israel by the Muslim world. That's not such a bad trade. Who knows - it might begin a chain reaction of noble deeds.
War crimes trials just might be the best moral investment we could possible make.
I got news for you pal. The Israeli's and the Palistinians couldn't care less about whether or not we prosecute Bush and Cheney. Their hate for each other won't be solved by war crimes trials.
In fact, I'm curious. Why would war crimes trials against Bush and Cheney have any affect on middle east religious hatred?
Man, you sure know alot. First you said Americans do not care if we prosecute Bush and Cheney and know you are speaking on behalf of the Israels and Palestanians. It is curious you can speak for the Palestinians when you can not even spell their names correctly. Who else do you speak for besides Fox News?
You must be logged in to comment. Log in or connect with
