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.
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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