Prosecutions -- A Reply to my Critics

This is a response to the more than 200 comments posted in response to my earlier post, "The Case Against Prosecutions." That post is available here.

First, a personal, rueful observation. There is some sort of law of nature that ensures that if one writes 20 blog posts, the one that is the least precise and least well delivered will be the one that gets the most attention. That's what happened here -- I knew I wasn't being as precise as I ordinarily try to be (one commentator was generous enough to describe the post as out of character), but I had no idea it would make it to the front page or engender this level of response.

As to that response: this post has so far received 200 responses: 198 of you think that I am wrong (most generous), should be fired (moderate), or am unfit for citizenship (the majority, I think.) 2 of you think I have a point. Naturally, I am gratified at this full and frank exchange of ideas.

Obviously I cannot respond to every point that has been made, but here are a few thoughts that might be worthy of your collective consideration.

1) I was unduly vague about what "prosecutions" I was talking about. I obviously did not intend to suggest that no act committed by any member of the Bush administration could be the subject of criminal prosecution! As most of you realized, I meant to refer to the issues that are at the forefront of the public discussion: the initiation of the war in Iraq, the authorization of torture, and the possible violations of the IVth Amendment involved in the administration's data mining operations. Since most of the posted comments focused on those things anyway, that was not the major problem. But it would be ridiculous to suggest that I or anyone else ever argued that no act by an administration official can constitute a prosecutable crime.

2) Many people asked a version of the following question: "if we don't have prosecutions, what will stop people next time?," often with a reference to the Nixon or Iran-Contra pardons. One of the things I tried to emphasize in my original post was the way in which the pardon power has to be factored into the discussion. Barring a constitutional amendment depriving the president of this special power, the effect of criminal prosecutions would likely *not* be to deter future misconduct, it would only be to drastically increase the use of pardons. By contrast, maintaining the present "convention" (in the British constitutional sense) of only initiating criminal prosecutions in cases that clearly reach outside the activities of governance the pardon counter is mostly kept at bay. It is also not the case that if there are not post-election criminal prosecutions there are no possible deterrents to misconduct. Congress plays a role here, as do the Justice Department and private lawsuits. (Some relevant lawsuits are already in progress.) Keep in mind that in a very real sense, the question before us today is the advisability of criminal prosecutions following years of complete failure of the mechanisms that were actually designed to check the exercise of executive power. In a very real sense, the question that is being asked is whether criminal prosecutions by a subsequently elected administration ought to be added to the arsenal of checks and balances. If that is the question, my answer is "no."

3) Other ask "without criminal prosecutions, how will we ever obtain a clear declaration that certain acts are unconstitutional?" Actually, declarations of unconstitutionality almost never result from criminal prosecutions, except in reverse (i.e., judgments to the effect that the prosecution in question violated a defendant's rights). Determinations of constitutionality usually result from civil lawsuits, about which I said nothing at all.

4) Many people misunderstood my argument about intent (others understood it just fine and disagreed, but for the moment I am addressing the first group). The distinction I was drawing was between an act committed with the intent to commit a crime, and an act committed with a legitimate intent that turned out to be a violation of law. I am quite aware of the ways in which this distinction does and does not appear in ordinary criminal law; I was arguing -- whether persuasively or not -- that the distinction should have specific significance in the particular circumstance of criminal charges brought against government officials whose alleged crimes occurred in the course of the performance of their duties. The reason is simple: without some special limiting principle, we risk a situation in which any time an official commits an act that is later authoritatively determined to be unconstitutional or unlawful, that official potentially faces criminal prosecution. I continue to maintain that such an outcome is untenable.

5) Many commentators were either upset that I included political calculations at all, or else insisted that I radically misconstrued the political consequences of one course of action or another. On the second point, we can only disagree. On the first, that's really the key issue here: the proposed prosecutions are not the same as the prosecution of a car thief or drug dealer, they contain a political element. Moreover, prosecutorial discretion is an integral element in the operation of our criminal justice system; it exists precisely in the same way that at every other critical point in the American criminal law system we depend on the irreducible exercise of a individuals' judgment based on the particulars of the case. The jury, the judge, the appellant judge, all work within a complex system of legal rules, but all ultimately are called upon to exercise the ultimately mysterious quality of "judgment." It's why I do not object to judges reaching beyond past precedents to find new understandings of the scope of our liberties; conversely, the same quality of judgment is required in our prosecutors.

6) Last point. I took it as given and obvious that all of my arguments were subject to revision in the event that new information were to come to light. My argument discouraging prosecutions does not translate into an argument discouraging investigations; I was responding to the tenor of a current and public discussion.

Respectfully,

Howard Schweber

Comments

[williamwilliam]

"The reason is simple: without some special limiting principle, we risk a situation in which any time an official commits an act that is later authoritatively determined to be unconstitutional or unlawful, that official potentially faces criminal prosecutio­n."

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Good point. In fact, to heck with simply limiting the Constitution- best to do away with it entirely.

After all, its such a moving target surely no politician can reasonably be held accountable to it.
Imagine being held accountable to a gd piece of paper!

You know what? We've all seen the bottom of that lunatic rabbit hole.
We've been living in it and we've had enough of the wretched stink down there.

Time to climb back up to sanity and restore the rule of law.

[absurditiesandrealities]

Two major points.

First, who said we are only prosecuting the Bush Administration? Your entire argument assumes that only Administration officials are culpable, when several leading members of congress, in both parties, knew about the most egregious offenses while they were being committed. Why do you think impeachment was "Off the table"?

Second, while I have to admire the sophistry, your etymological gymnastics are superfluous and fail to demonstrate your point. The Bush administration falls into other category, using your own examples:

"Rwandan government officials coordinating genocidal violence"
"Serbian commanders ordering ethnic cleansing or mass killings in Srebrenica"
Equivalent: U.S enabling sectarian cleansing
Citation: http://latimesblogs.latimes.com/babylonbeyond/2008/09/iraq-iraqi-deta.html

"Sudanese officials arranging the arming of Janjaweed gangs"
Equivalent: U.S. officials arming of Sunni insurgents
Citation: http://www.commondreams.org/archive/2007/08/27/3444

"government officials who tortured dissidents and political opponents"
Equivalent: James Yee
Citation: http://www.usatoday.com/news/nation/2004-05-16-yee-cover_x.htm

Cases of officials whose crimes had nothing to do with governing
Equivalent: Dept of Interior; politicization of DOJ; Cronyism with lobbyists i.e. Halliburton;
Citations: too many to mention

Bush & company will be prosecuted. The only argument is when & how: By a U.S. Court, by the Hague, by another country: It took decades to hold Pinochet accountable, I doubt that it will take ten years to bring Bush, his handlers, his accomplices, and his enablers to justice.

Peace

[JTennessen]

It strikes me that all of the discussion of this issue that I have read seems to assume that, if prosecuted, Bush administration officials would automatically be convicted. I think, unfortunately, that there is real reason to doubt this assumption, not the least of which is the fact that about half of the Federal judiciary as it now stands has been appointed by Bush. What do you think the consequences would be if these officials were tried and acquitted? Would that not result in an even greater diminishment of deterrence, and if so, are we willing to take that risk? If you factor in the unquestionable increase in partisan division that would result from the very fact of prosecutions, I believe the risk/reward calculation becomes weighted heavily on the side of risk.

[splinky]

Still not buying it; still don't think you deserve tenure.

Whenever an academic uses the phrase "in a very real sense" you can be sure that there's some obfuscation coming. In this case, we have two examples:

"Keep in mind that in a very real sense, the question before us today is the advisability of criminal prosecutions following years of complete failure of the mechanisms that were actually designed to check the exercise of executive power. In a very real sense, the question that is being asked is whether criminal prosecutions by a subsequently elected administration ought to be added to the arsenal of checks and balances. If that is the question, my answer is 'no.'"

The first sentence is meaningless: yes, the question before us is the advisabili­ty...so what? Those of us who prefer laws to be obeyed find it advisable to prosecute those who violated the laws, regardless of whatever "mechanisms" (and their failure) you propose as mitigation.

The second is sentence is false: neither in a "very real sense," nor in any other kind of sense (which would be what, exactly?) are we proposing that prosecution "be added to the arsenal of checks and balances"--the law always has been there to control illegal acts [if you can obfuscate, I get to engage in a tautology]--we are proposing that prosecution follow unlawful acts, no matter who commits them.

[eereeves]

Did anyone break existing laws? Whether by reinterpretation or just plain breaking? Then prosecute to the full extent of the law. There are no extenuating circumstances, especially for those who govern and should be held to a higher standard. Period!!!!

[BBackSoon]

While I understand your argument I do not agree. We are a nation of laws. And if we selectively apply the laws we enforce we open ourselves up to more abuses. And examples are powerful deterrents. If a bunch of the big dogs and even a few of the minor ‘hands on’ people were actually sent to Federal F. Me in the A. prison perhaps it would stop some of these White Collar-Political type criminals. Meaning that if a guy robs a bank and is found guilty of bank robbery he goes to jail, but if you are found guilty of sanctioning torture, or spying on All US Citizens, or politicizing the Justice Department it is a grey area? No Sir!

These are not stupid people. Ok some of them are but that is still no excuse. They didn’t think what they were doing was actually legal. They thought they were protected by Bush or even by being President and that they could get away with it.

[itmaybetoolate]

Look, either bush violated the right to privacy or he did not. He either sanctioned torture thereby committing a war crime, or he did not. The questions are real and they are out there. Do we simply walk away from them? Nothing short of an investigation, and criminal charges, if warranted, will suffice. No "national healing" can ever take place until these questions are addressed.

[RobinSeattle]

Howard, amid your argument, here is a couple of quick paragraphs from today's L.A. Times about what regular people have to put up with from our justice system:

"Last week, the [Supreme] court extended the so-called exclusionary rule and said tainted evidence could be used if police made an honest mistake in searching a suspect. In that case, an officer acted on an arrest warrant that should have been removed from a police computer.

That same day, the court also threw out a lawsuit against police in Utah who, based on the word of an informant, burst into a house without a warrant. The justices did not decide whether the search was illegal but concluded that police were immune from being sued.

In a second decision Monday, the court said police could stop and frisk a passenger in a stopped car, even if there was no reason to suspect the passenger had done anything wrong."

So while innocent motorists can now be subjected to uncalled for fishing expeditions by the police and cops can burst into any house with no legal approval from a judge, but just to do some whimsical nosing around, we have to let Cheney off the hook? Sorry if that seems insane to me.

[brantl]

Also, Mr. Schweber, the fact that the President can be held criminally liabel (just as any other person can) is the basis of "No person is above the law", perhaps you missed that?

[brantl]

....I find your arguments to be specious, at best. The argument about "finding out what's constitutional" is a sides step of the problem. You aren't quoting erroneous facts, but your facts are the least important area of the argument. Most law-abiding people know enough to stay within the Constitution as it pertains to their daily routine. The people that couldn't care less about what's Constitutional or legal(in other words, the Bush Administration) need a painful example, in order to discourage them from making these kinds of illegal forays in the future.

You then go on with this: "In a very real sense, the question that is being asked is whether criminal prosecutions by a subsequently elected administration ought to be added to the arsenal of checks and balances. If that is the question, my answer is "no."" Your answer, by any current (even the SCOTUS, as right-wing as they are, disagree with you) reading of U.S. law is wrong. With a President's ability to delay evidential discovery, NO OTHER ROUTE IS AVAILABLE FOR RECOURSE FOR U.S. CITIZENS against a president.

[brantl]

"The distinction I was drawing was between an act committed with the intent to commit a crime, and an act committed with a legitimate intent that turned out to be a violation of law. " The paradigmatic fact that this ignores is the fact that these people have plenty of lawyers to draw on, and they could get comptetant ones IF THEY CHOSE TO without any difficulty whatsoever. The idea that they didn't know that what they were doing was illegal, and had they consulted anyone competant (this leaves our Yoo and Addington, as a start) they would have had no difficulty finding out that what they were doing was illegal. If you think that subordinate people (like U.S. Army grunts) should be absolved, I would be much more likely to agree with you, except that they, too, get training in what is legal and what is illegal, if they chose not to pay attention to that, I consider it to be an extreme failure of character, and basically, if you snooze, you lose.

I submit that if you feel that there is insufficient evidence for people (the public, not legal juries) to make a determination of likely guilt, then you haven't been keeping yourself informed, what Bush has done that is illegal goes all the way back to the original Downing Street Memos, years ago. This deserves investigation, and the current evidence (unless there appears a lot to the contrary, unlikely at best!) merits prosecution.

[slarabee]

i suppose I should do the honorable thing and agree to disagree but no I don't thinks so.

"The reason is simple: without some special limiting principle, we risk a situation in which any time an official commits an act that is later authoritatively determined to be unconstitutional or unlawful, that official potentially faces criminal prosecution. I continue to maintain that such an outcome is untenable.­"

The error in this logical yet poorly conceived literary illusion is that the crimes we are concerned about are not crimes that "are later authoritatively determined to be unconstitutional or unlawful". These crimes were always unconstitutional and unlawful. The George W. Bush administration cannot change the illegal to legal just by force of will. In other words it is not legal when the President does it.

It does not get more simple and clear than that. Although I know that many of us have been subject to continual obfuscation for so long that a glass of milk looks as clear a fresh mountain spring water but again just because it seems that way doesn't make it so.

[RobinSeattle]

So Howard, other than clearly stated exemptions by statute for prosecuting or suing public officials for issues related to their duties of office, it seems to me that your argument is that we should give politicians an extra special break because not doing so will encourage the president of the party who committed said acts to issue pardons (like Bush the elder did with Casper Weinberger).

However, in the case of the just completed Bush administration, Boy George refused to issue pardons for anyone, including Gonzalez, Libby and Cheney, the latter admitting to taking part in a conspiracy to commit torture, when he had no idea if the aforementioned would be prosecuted or not upon his departure from office.

Also, the United States has signed the Geneva Convention, which forbids torture, and we have prosecuted and hanged folks for engaging in that practice.

And, just to remind you, "treaties are the law of the land," says Article VI of the Constitution. To now not prosecute Cheney, et al, is to effectively take those agreements and set them alight so that they become little more than fading puffs of verbal smoke. Now just how much diplomatic credibility does that give any negotiations we enter into with foreign powers now and forevermore? Zero.

You guys are scared of taking on political heavyweights here in another of too many recent Profiles in Cowardice by those charged with protecting our nation.

[Yermammy]

Thank you, Mr. Schweber. Two things. Ignorance is no excuse for lawbreaking. Insane Lawyers at the OLC do NOT give you an excuse. There are viable charges of first degree murder here and the pesky item of self admitted torture which was the death penalty to our enemies in WWII. So, NOW we ignore what the Geneva Accords (Sec III), the International Red Cross, the ICC and the UN say is torture and is illegal? This isn't political anymore. This is WORLD OPINION.

[caphillprof]

You say: "the proposed prosecutions are not the same as the prosecution of a car thief or drug dealer, they contain a political element."

Yet, if we looked ourselves in the mirror, and were honest, we would have to admit that even the prosecution of a car thief conatins a political element and the prosecution of a drug dealer is only political.