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Howard Schweber

Howard Schweber

Posted: January 24, 2009 05:29 PM

The Case Against Prosecutions

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There is a lot of talk about the idea that Bush, Cheney, and members of their administration should be prosecuted for violations of American criminal and international law. The arguments in favor of prosecution are straightforward: laws were broken, and the rule of law requires that lawbreakers be held accountable. Conversely, some of the arguments against prosecutions are singularly unpersuasive: I have recently heard arguments to the effect that "prosecutions would make us look weak," "we should focus on the economy and jobs," or "they didn't do anything different from what every other administration has done." These are terrible arguments. Having principles is not a sign of weakness, especially when your main international project is to persuade the world that you have rediscovered the principle of having principles. As for the economy - I am not of the belief that the combined resources of the national government are insufficient to do two things at once. And the allegations against the Bush administration and its leaders go well beyond the usual recriminations or questions.

And yet my own conclusion is that prosecutions are a very bad idea. There are two reasons why, one that has to do with the nature of the alleged crimes and the other that has to do with the consequences for the country of conducting prosecutions.

On the first score, it is critical to distinguish between the exercise of legitimate political authority in ways that lead to violations of law from conspiracies formed for the specific purpose of violating American or international law for the sake of the illegal action itself. Let's take two sets of cases. The first category would include Rwandan government officials coordinating genocidal violence, Serbian commanders ordering ethnic cleansing or mass killings in Srebrenica, and Sudanese officials arranging the arming of Janjaweed gangs. It would include government officials who tortured dissidents and political opponents, or used torture routinely. And it would also include cases of officials whose crimes had nothing to do with governing, those who loot their country's treasuries or engage in straightforward corruption.

But the key element here is not the severity of the conduct, it is the nature of the intent that is involved. Cases that deserve prosecution are cases in which government officials set out to engage in a pattern of illegal conduct for the sake of that illegal conduct. It would also include officials in the Reagan administration who conspired to violate the Boland Amendment, and obviously this category of cases includes the various criminal conspiracies involved in Watergate. Those were not conspiracies to commit acts in the belief that under the particular circumstances of the specific cases involved they were not crimes, nor did they involve actions that were judged to be necessary in the context of the legitimate exercise of political authority. Iran-Contra and Watergate were simple conspiracies to commit crimes because the participants wanted to see those crimes committed. These were and remain appropriate and proper cases for prosecution.

The second category comprises cases that are not appropriate subjects for prosecution. These are cases that involve government officials who pursue legitimate goals through means that others consider criminal. In international law this category includes the decision to bomb German and Japanese cities during World War II, and the Clinton administration's targeting of Yugoslavia's power grid. By extension of the logic, the decisions by Israeli officials and military commanders to target civilian infrastructure in Lebanon 2006 and Gaza this year also fall into this second category. For examples involving domestic law, this would be the category in which to place Lincoln's imposition of an embargo prior to a congressional declaration of war. In principle, this second category of cases include those of every government official who has ever enforced a law that was later to be found to be unconstitutional; unless these officials enforced these laws in order to undermine the Constitution -- which is not an unknown occurrence -- their actions should not result in criminal penalties. Lawyers talk about these questions in terms of categories of a mental state that is specified as an elements of a crime, or the technical requirements of conspiracy. Those arguments are relevant in all cases, but I am proposing that they take on special salience when the targets of a prosecution are elected officials.

I would argue that the actions of Bush, Cheney, and others fall into the second category. Bush and Cheney sought legal counsel. Okay, they sought legal cover, but they got it from legal professionals (whether those professionals should be allowed to retain their professional status is another question.) The goal of their efforts was the pursuit of legitimate governmental purposes, and there is at least room for honest and serious people to disagree about whether and to what extent their actions were in violation of the law. These characterizations are debatable, to be sure, and if someone wants to argue that the actions of Bush and Cheney properly fall into the first rather than the second category, I am open to persuasion. But the claim that any and all actions by government officials that are in violation of laws warrant criminal prosecutions by subsequent administrations distorts the meaning and purpose of those laws.

The first argument for opposing the prosecution of Bush administration officials, then, is a legal one. Not a technical legal argument, perhaps, but an argument about the nature and purpose of the law. The second reason for opposing prosecution is political. I am not worried about the nation might appear weak if prosecutions were to go forward, I am worried about the possibility that the nation truly has been profoundly weakened by the divisive and viciously punitive form of political partisanship that the GOP introduced in the 1990s and brought to a sick apotheosis with the impeachment of President Clinton. In some meaningful and important sense, I'm not sure the nation as we understand it would survive the experience. Certainly the idea of an orderly transition of power would be put at risk if the assumption were that incoming administrations should be expected to examine the record of their predecessors with an eye toward prosecution. At a minimum, the likely enormous expansion in the use of the President's power of granting power would denigrate that process. Alternatively, the effective transformation of criminal and international law into weapons to be employed against political opponents would threaten to deprive those sanctions of all meaning. And the hope of dissolving the lines of tribe is hard to maintain if one is faced by the prospect that if the other side wins an election the leaders whom you supported will be sent to prison.

I do not say any of this in any particular spirit of bipartisanship. For all the myriad faults of past and present Democratic leaderships, the Republican Party has a great deal to answer for with respect to the degradation of the American democratic system that it unleashed over the past fifteen years. The GOP model of politics as total war, the search for permanent majorities, "pay to play" and the K Street Project, and all the rest were not merely unseemly, they were strategies that called the basic premises of democratic governance into question. Nor are these attitudes unrelated to the actions by Bush, Cheney, et. al., that would be subject to prosecution. The mentality of "with us or against us" absolutism and the belief in the absolute moral necessity of victory that were so evident in domestic politics had everything to do with what was done elsewhere. But prosecutions of past administration members does not lead us out of that mire, it only reinforces the validity of the mindset among those whose candidate and party lost the most recent electoral contest.

The basic principle of a democracy is that even if we lost today, we might win tomorrow, and those who are our political opponents do not thereby become our enemies. It has not always been clear to me that the Bush administration and its supporters understand that distinction. President Obama seems to get it, and he seems to understand that prosecutions would be a step in the wrong direction. The use of criminal prosecutions against members of prior administration for actions committed in the course of governing is a step in the wrong direction. I respect and admire many people who are calling for prosecutions. But I respectfully disagree.