The "Move On" Defense Of George W. Bush
John Barry has written what I will call the "move on" defense of the Bush administration in this week's Newsweek. The idea is that it is fairly clear that the Bush administration violated the law in several instances, but since we already know this and his party has already lost an election, let's just move on already.
You can read the piece here and you can see that I am not exaggerating at all. That is truly his argument. In fact, we will have Barry on the show on Monday to talk to him about this article.
If I seem incredulous at that argument, that's because I am. They never taught me that one in law school. "Look, your honor, we know my client committed this crime, we've already caught him and the victim is already dead. So, let's just move on already!"
To say Bush's defense is that his opponents want "political vengeance" is a non sequitur. Couldn't every trial in the country be characterized as some sort of "vengeance" based on this logic?
The reaction to his law breaking cannot be a defense for his law breaking. "Your honor, your attempt to try my client is an act of vengeance that justifies my client's original law breaking. Hence, he should not be held accountable for his crimes." Would that argument make any sense in the context of any other crime? You would get laughed out of court. They might revoke your admission to the bar.
But we're told that in the political context it makes sense. I think the exact opposite is true. I think it is even more important that we hold our elected leaders to an even higher standard than the average citizen. They are entrusted with enforcing the laws. If they are the ones who break them, society is in much larger trouble.
Bush clearly ordered spying on American citizens without a court order. Everyone knows this. Bush has even admitted it (after originally lying about it). This is clearly illegal. What is the defense? It's legal if the president does it? I think I've heard that one before.
This law is an admonition against the government. If no one in government can be tried for it because it would be "political vengeance" to do so, then the law has no meaning.
The same is true of torture. If a citizen waterboards someone, that is aggravated assault. If the state does it, it is torture. It is by definition a governmental crime. Who do we prosecute if the government has immunity because of the "move on" defense?
Torture is against federal statute and our treaties prohibiting its use are the law of the land. If you allow the Bush administration to do this without any repercussions at all, then you might as well take the law off the books. Because then the state can torture anyone they like. Because prosecuting them would be "political vengeance."
Some will argue that these things were not technically illegal because the Office of Legal Counsel at the Justice Department authorized them. In these cases, the OLC was not an independent actor; they were part of the executive branch and a partner in crime. If Bush said he would like the authorization to kill innocent people and the OLC gave it to him, would it be legal?
By the way, this is not theoretical. The Bush administration's orders did in fact lead to the deaths of many innocent people, like the murder by torture of a taxi-driver named Dilawar at Bagram Air Base. That's what happens when you do illegal torture. Sometimes it gets out of hand. That's part of the treason we passed laws against it.
Now, some can also make a persuasive case for investigating the Bush administration's lies that got us into the Iraq War. There is almost no doubt that the Bush administration manipulated intelligence to get us into that war, but I think that is a harder legal case to prove and it gets too close to policy-making for my comfort.
But these decisions are not mine to make. We should appoint a clearly unbiased independent prosecutor, Patrick Fitzgerald for example, and let him investigate what was and was not clearly illegal. Fitzgerald is a very careful prosecutor. As we saw in the Libby case, he is not going to overreach. I would be very surprised if he brought up charges on the Iraq War and I would be curious to see where he comes out on torture and illegal spying given the OLC defense. But at the very least, we have to have someone look into this. If we don't, our laws against government power become meaningless.
If the state can say that they have a "move on" defense and that any prosecution against them is an act of "political vengeance," then they will have carte blanche to break any law they like. For me, this isn't about politics. The American people have already rendered their judgment in that sphere. I'm very comfortable with their decision in that regard. I can even see some people's concerns that this might backfire politically on the Democrats. But that is not my concern.
This is about precedent. How many presidents can we allow to break the law before it becomes de facto legal for the president to break the law? In other words, before it becomes legal because the president did it!
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How about a Truth and Reconciliation process a la South Africa? If they come forward and tell the truth about what happened and give those who suffered the chance to do the same, they won't face prosecution.
Yes, they would be getting off easy, but I think at least it would illuminate a dark period in our country's history for generations to come so that the same mistakes won't be made again. Otherwise, I fear it happening again, or worse. Pushing it under the rug won't keep it from coming back again.
As much as we might like it, sending Bush, Cheney, Rumsfeld, etc. to prison won't happen and the process would bitterly divide the country. A Truth and Reconciliation process is probably the best realistic alternative that would prevent this from happening again.
"Fault Lines" is the name of a book by David Goodman which examines, through interviews of prior antagonists, the aftermath of the South African attempt to deal with abuses that were unkind, inhuman and immoral but not necessarily against the law. Through the Truth and Reconciliation Commission national leaders, policemen, landlords,and bad actors at all levels of the society were involved. In the end our situation is different. Here it is just mainly our highest leaders and they are law breakers. Our focus is on returning to the rule of law. Our objective is to prosecute unlawful acts. Not to say there isn't some desire for revenge but if we get that while we are upholding the law good on us. In South Africa they were trying to get away form the rule of the old laws and since the perps couldn't , in good conscience, be prosecuted for old crimes under new laws nor for simply being immoral the best that could be hoped for was that they would come forward, confess their deeds and be forgiven. Here's the good part: because of our old laws we have the advantage of being able to prosecute the bad guys, send them to jail AND forgive them. OK who am I kidding. I want full blooded revenge and the Truth and Reconciliation Commission sound about as satisfying as a fat-free diet.
Hold your horses for a second... Legal precedent? So organizing a coup in Iran in '53 was legal? Aiding the Taliban was legal? Laos? Vietnam? Bay of Pigs? Chile? Niquaragua? El Salvador? (And all the other banana republics in South and Central America?) Haiti? Aiding Saddam, selling him biological and chemical weapons, tolerataing the use of mustard gas? Iran-contra scandal? I can go on -the list is far from complete. There is sooooo much crap that was going on in the last 60 years, none of it was legal. Who ever got punished for these? Where was the law then? Do you really want to start to apply the Nurenberg Principles to the past administrations? I wish you would.
The only thing Bush did differently, is that he did not care to do it behind the curtains. Don't try to sell that the USA was a model of law and order before Bush came. He is not the cause. He is merely a symptom. The precedent is already set. These are only crimes when not you or your allies do it.
I get it! So the fact that other people did stuff which was illegal is a justification for allowing THIS administration to perform illegal acts! And one more thing, the only difference between THIS administration and previous administrations is that this one was actually harming our civil rights in addition to all the other illegal acts. While I don't like what has been done in the name of the USA before, and I wish that we could go back and fix the messes that have been created, I DO know that we need to stop the precedent of this administration before it happens again, because I don't think the USA can survive another Bush type Presidency!
You are uncategorically correct. If these guys aren't brought before the law it will prove to the world that we are a sham and it will prove to the nascent neocons buried within this administration that if they can make it to the White House, where criminals go free, they can do as they please. It will be a repeat of what we have just been thru magnified to the nth. I will say it again. If Nixon faces justice we never see the neocons. Unless the Bush clique faces the law we will never see the last of them.
The reason to not prosecute the Bush Administration is simple enough. Obama can either go after their crimes or fix the country. Its a sad but true political reality.
The country ( states like VA, NC, FL, OH, CO, IA, IN) aren't quite blue enough to sustain a 4 year investigation into the intricacies of CIA interrogations, DoD methods of intelligence collecting etc. Most Americans that democrats will need in 2010 and 2012 aren't the liberal base. THey're moderates that won't care about torturing a few terrorists. Their only experience with terrorism is watchin "24" and torture seems to work well for Jack Bauer.
Progressives seem to forget that Presidents are elected by electoral votes, so losing traditionally Republican states like Ohio is tantamount to throwing an election. I don't like this reality any more than any of you, but at the end of the day I'd rather have Universal Health Care , Green Energy, a growing economy, etc.
If the price of those progressive programs is that George W. Bush or Rumsfeld are not prosecuted, I can live with that.
No if thats the case lets devote a week to going after shr-ub and cohorts crimes and throw in propoganda machines like anne coaltar, r.ush win.dbag and O'Really too.. Hell, lets devote a few months and a few $billion, my argument for doing so, we're already in the deepest hole so whats another month and a few more $$ to sart making wrong right again.
You did not get it, Dizmo! If W does not get tried, the sad story of this decade will repeat itself soon. If Nixon was tried, Reagan would not have happened. The reason for justice is to instill fear of punishment, among all else.
But if Obama and his aides actually suppresses or steps in the way of prosecuting war crimes that have been committed (facts are not "political"), according to the UN (see Rick Sanchez CNN report from yesterday), Obama would be obstructing justice. Check it out.
Huba huba! It's good reading but little to do with the world now! You would better serve yourself and the country in deciphering what's wrong with America and how to improve it. I believe if you investigate your findings in your article you will find that the supreme court backed many of these actions. There was a great attack on the US on 9/11. It was the third or forth attempt at destroying the trade center! As we spiral into an unknown, unexplained economic crisis maybe you should begin at the towers and what there demise really meant. The present events are becoming ominous! Spending one dime on the past is 1990-ish! We don't live there anymore, not now, perhaps never. Move on, watch and create. Obviously why watching and spying on the enemy, thieves stole it all who were to be trusted. The torture and spying was just on the wrong people.
You people just aren't cynical enough.
First, Bush won't be prosecuted. Year after year news stories come out informing us how it is that the rich and powerful are held to a different (more forgiving) standard than the rest of us.
Second, even if Bush was prosecuted it would be such a media circus that all other shenanigans of the rich and powerful (like big bonuses to leaders of failing financial companies on the government dole) would be forgotten or brushed aside. After a very long and protracted battle that ate up a large percentage of the daily news cycles, and assuming they were actually able to make something stick, the supporters of the cause would celebrate with great fanfare and trumpet 'this great victory for justice'. Meanwhile, hundreds or thousands of other rich and powerful people engaged in their own shenanigans would go unnoticed.
You can't legislate a mindset. Even when this country was being formed many important people did not like the idea of a weakened president. Some even wanted a king. People have long admired and sided with those in power, no matter how egregious their crimes. History offers many examples. The real sadness here is not that Bush is who he is, but that so many people see nothing wrong with lying, spying and torture - as long as it is done by those proclaiming to share their values.
You can't legislate a mindset, but you can prosecute one. If you nail the people that step out of line, every time there's evidence discovered that indicates a crime, you will have prosecuted to the point that people don't commit the crimes, or are very cafeful when they do, or they're just plain crazy (don't care if they're caught) , which is as good as it ever gets. Period.
"First, Bush won't be prosecuted."
The Convention Against Torture unambiguously requires prosecution.
http://www.salon.com/opinion/greenwald/2009/01/18/prosecutions/
http://www.washingtontimes.com/news/2008/dec/02/the-pardoners-tale/
"Second, even if Bush was prosecuted it would be such a media circus..."
So what? That aspect has not prevented the process-abuse travesty of Clinton's impeachment, Nixon's (aborted) impeachment, Andrew Johnson's impeachment, or conviction of Harding's Interior Secretary for accepting bribes (Teapot Dome).
"...assuming they were actually able to make something stick..."
Torture has already been admitted by a very senior -- and particularly relevant -- Bush: Susan Crawford, former Chief Judge, Court of Appeals for the Armed Forces, and now convening authority for military commissions at Guantanamo.
She said: "We tortured Qahtani. His treatment met the legal definition of torture."
There is also General Taguba's report of detainee abuses at Abu Ghraib, which calls those abuses both "torture" and "war crimes."
So the question is NOT AT ALL 'making something stick.' Its already quite stuck.
"People have long admired and sided with those in power, no matter how egregious their crimes."
What's this... the everybody loves to love a War Criminal defense (excuse)?
"History offers many examples."
Like the Nuremburg trials. Like the prosecution of Pinochet. Like the prosecution of Chuckie Taylor, Jr... whom the Bush Administration itself prosecuted for torture. Too many others to list.
Once the hatred begins to fade towards Bush, it will be interesting to see whether the liberals and leftists have a case against him.
These charges are tired and old. If there is anything there, well have at it. Otherwise get on with the "change thing."
A sure sign that things are not quite as black and white as has been portrayed are the issues concerning the GITMO prisoners. It's just not quite that cut and dried, is it?
Well,... getting one of your leagl toadies to write a legal opinon that waterboarding (and perhaps other means) previously defined as tortue by our own military & civilian justice systems, for which we have scuccessfully prosecuted other foreign nationals in the past, is no longer 'torture' 'cause they say so is fairly black & white to me.
The toadies are attempting to create confusion & cover so that you can break the existing law. The confusion doesn't change the law. It just means that Bushco premeditated their breaking the law.
Seems pretty black & white to me.
But the problem with that is who is at fault?
Is it the person that asked for the legal opinion?
IS it the lawyer who wrote the opinion that made the action legal?
is it the person that followed the flawed legal advice?
Is it the person taht conducted the water boarding?
Yeah, actually it is. The only concern that we have now is if we release them back to their home countries whether they will be tortured or killed by that country. In all other cases they will either be tried in a court of law and if convicted will be prisoners, and if acquitted will be released back to their home countries.
Don't talk to us about "black and white" or things being more complicated then they seem, after subjecting us to 7 years of "you're either with us or you're with the terrorists", constant iterations that the War on Terror embodied a "war against evil", or such incomprehensible bullshit that anyone who dares to question our president's decisions should be branded as al-Qaeda sympathizers.
Let's see now how you and your hypocrisy enjoy being subjected to a taste of your own medicine.
I agree that an independent investigation is needed. I am a very conservative christian person. I am outraged at how our government is destroying our moral standing. I am not talking about just Bush and his tyrannical administration. The congress allowed the funding for all these activities. In fact they did little to nothing at all except public outcry which amounted to support in the next election but no change in policy. We have a tripod power system for a reason. They had the ability to do something and they did not. We need to address all of the responsible leaders that have failed us over the last 20 years and more. As far as letting presidents break the law this is not a new precident. Clinton and Nixon are the first to come to mind. I agree this is the root cause of the problem. 600 million people in this great country and these are the people that lead us. Fire them all and lets start over. The federal government need a reboot.
It's hard to remember there's good people (like you) out there that are Christian and conservative, considering all the vipers that visit this site. Good to know everyone doesn't see this as some partisan witchhunt. I can very much assure you that if the shoe was on the other foot, I'd be standing along side you. My country FIRST, then my "party" (they're trying to merge, methinks, both against us). Good luck to you and maybe we'll see some justice, for a change.
I think before you blame the dems that got elected late in the second Bush term, you need to know how things work. I have heard several of them explain that it was impossible to get anything done because the President would just veto anything he didn't agree with. They had to make great concessions to the Repubs to get anything passed.
The whole idea of a reboot is cute, but we live in the real world, and everything has to go according to law. And, Nixon, Clinton and Bush all broke laws in varying degrees. Bush should go to prison, Nixon got what he deserved, while Clinton only lied about his sex life. Very very very different. Only a very stupid person would equate them as equal. Either that or your definition of "moral standing" equates adultery with murder, torture, outing one of our own spies, the theft of billions of dollars, etc.
How dare you say that the Congress did little to nothing to stop Bush. You don't know what you are talking about. And spreading lies like that is reckless.
It figures that a self described "very conservative christian" would blame the democrats for what Bush, Cheney, Rumsfeld and their cronies have done. Ridiculous.
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Actually there are two things that I would like to correct here. One, Nixon didn't get what he deserved, that's why we had bush in the first place. If Nixon had been tried (convicted or not....) then we would have had a reasonable precedent here.
Two, in addition to bush vetoing anything that he didn't agree with, we also had more than 70 filibuster threats in the Senate, more than any other Congressional term in HISTORY!!! Granted, you never hear about that, because Harry Reid is a big p***y, but they were still filibustering anything that didn't meet the NeoCon view!
Nixon was first Ronnie was second and George (daddy was third). Bushes, both first and second, far outstripped Clinton's criminality; Clinton lied about consensual sex between adults, and had no other cirminailty. The Bush administration should be tried. If there is any reasonable access to evidence, they will be convicted.
I'm getting sick and tired of correlations between the crimes perpetrated by Clinton and Bush. For one thing, Clinton already payed for his "criminal acts" by his official impeachment. Secondly, it's utterly insulting to imply that lying about an extramarital affair could possibly equate to the severity of lying in order to ignite an unprovoked conflict which has thus far claimed the lives of tens of thousands of individuals, or abusing power to violate the geneva convention.
One thing I have said since 911 was America needs to step back and take a deep breath. Well now is the time . We Americans need to know how our Great Country went to hell in a hand basket in such a short period of time. The Enron debacle was never held accountable, the post 911 Rush Rush to undermind the Constition,the your a traitor to not drink the Koolaide,the war profiteering,the make Iraq into the perfect GOP state, Katrina/Rita, tourture, how three friends my age lost three quarters of a million in 401 K funds, the list is endless. The American people have spoken. I don't know who should have the undaunting task to investigate the undoing of the last eighr years. It must be done to save My Country from what almost accomplised during this horrendous incompetent administation. Everyone is talking about just one special prosecutor but this is too big a task for just one person. For the love of God they have almost destroyed this Great Country in the name of greed and power. The American people have spoken and need a clear path to never let this happen again!
I'm simply afraid this is a bitter pill that we have to swallow for now. Unless the international community makes an extremely strong push to indict Bush, this administration cannot afford the grievous political damage that would be caused by pursuing charges. The safety and welfare of the American people is the only priority right now, and that means fixing this economy no matter what. That means having to sacrifice to keep the Republican party involved in the process- they still have enough power to stonewall legislation, and enough political savvy to maintain a solid base.
Long story short: we need to fix America first, before we can go after the ones who broke it.
Rubbish.
Agreed. "Rubbish."
Baloney! The COUNTRY cannot afford to NOT look into the bush admin, even if it DOES cost us Obama!!!
Wrong.
Our priority is to become a team player in the international community again, to assure others that we will not bully, intimidate, threaten, or invade sovereign nations without sufficient provokation, and that we will shun a degree of nationalism which has already rendered us worse than the terrorists themselves.
Top-notch article, presenting a voice that so desperately needs to be heard at this time. The "move on, a prosecution will 'distract' us" types are every bit as scary as Bushco and pals.
Here is the problem. If you want to make a case make it. But don't think that the political people of this administration will make it for you. The politics are clear. If we start this fight it will suck all the oxgen out of the room for the entire 8 years, if it is 8 instead of 4. The politics of this are that this is bad idea, in the history of bad ideas this might be the worst. Now if you want to file suit to make the justice department investigate go right ahead. The reality is that is the only way to make someone do it. As it stands now, the politics trump the law.
On the other hand, even if it IS a bad idea for Obama (which I don't think that it would be, look at what happened to Ford when HE didn't.....) the country cannot afford to ignore the abuses that bush performed! We need to ensure that no future President can abuse power the way that Bush has done in the last 8 years!
I'm all for investigation (that will undoubtedly lead to prosecution) but the point needs to be corrected, it won't be the same between Obama and Ford, Ford was in the same party, chosen by the guy that he pardoned. It isn't at all likely that letting this lie will get Obama the same trouble that Nixon bought Ford, and to which Ford agreed.
Bush, Cheney and the others confessed to ordering torture. Marcia Clark and Chris Darden could convict them, for crying out loud!
All of the accusations against Bush are specious and have been debunked by top legal people in the country. Bush LEGALLY conducted warrantless wiretaps because of exigent circumstances. He denied it because it was classified information, i.e. our enemies would know how we're defending ourselves. He had the right to do that. And on and on.
Exactly how many people in the legal community (prosecutors who know the story and know the law) are calling for the prosecution of George Bush? Zero. Politicians, activists and leftist journalists don't count: they are either uninformed or fomenting hate for hate's sake.
um... WRONG! Bush could NOT have legally conducted warrantless wiretapping except in the 15 days after 9/11, since the FISA law of 1978 forbade the use of warrantless wiretapping except for 15 days after an emergency. Once he passed the 15 day window (9/22/2001) he was required by law and the Fourth Amendment to get a warrant to wiretap ANYONE, whether they were citizens or not, and was only allowed the 72 hour delay in getting a warrant on wiretaps which might involve national security!
correction: not 9/22/2001, but 9/26/2001
Sorry, there is no way to LEGALLY conduct warrantless wiretaps. That's why the FISA court is there. Even giving up to 72 hours AFTER the wiretap to secure the warrant. They not only wiretapped without warrants, they never even requested the warrants. That makes it ILLEGAL.
Thanks for playing!
"All of the accusations against Bush are specious and have been debunked by top legal people in the country."
Sorry. That statement is just simply misinformed and false. You will be hard-pressed to name even one "top legal person." The facts already exist, and are irrefutable.
There is no "debunk" in existence anywhere. That requires a trial.
"Exactly how many people in the legal community (prosecutors who know the story and know the law) are calling for the prosecution of George Bush? Zero."
Wrong. Again, that statement is just simply misinformed and false.
Start with Bruce Fein... John Dean... Jonathan Turley... Glenn Greenwald... Marjorie Cohn and the ENTIRE National Lawyers Guild... the Law and National Security Committee of the American Bar Association... Vincent Bugliosi... Judge Susan Crawford... General Taguba... Marine Commandant P.X. Kelley... Lt. Col. Darrel Vandeveld (Gitmo lead prosecutor)... Elizabeth de la Vega...
A tiny sample, just for starters.
"...they are either uninformed or fomenting hate for hate's sake."
No. It hurts, but you are the misinformed one... and by this point, your ignorance can only be willful in the extreme.
I heard Keith Olbermann and Jonathon Turley talk about why the Obama team is not prosecuting the Bush Administration for war crimes. But correct me if I'm wrong but today, Jan. 26th at 10pm finds that Eric Holder, the Attorney General designee has yet to be confirmed. So why are we on the left pushing so hard to make this an issue before that confirmation? And why would President Obama even want to deal with this trap as he attempts to gain some level of bipartisan cooperation agreement ON HUGE BIG TICKET ITEMS? I swear that sometimes, we on the left don't get it. We seem to be always standing in a circular firing squad with our power dry and our flint poised to strike. Are we simply daft? Saving the country takes precedence over vengeance even if retribution is warranted. Timing is everything here and you pundits are pushing the wrong button on this. We need to fix things before we fault others. PLEASE LAY OFF OF THIS LINE OF QUESTIONING AND SPECULATION UNTIL AT LEAST WE HAVE SOMEONE AT THE HELM IN THE OAG. someone call Keith (whom I love) and tell him to quit it until we get the country back.
Actually the republicans are holding up Holders confirmation for just this reason. They want an agreement from him to NOT investigate and prosecute the previous administration.
So now is exactly the time for this discussion.
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