Maybe, Going Forward, We Should Just Let Bernie Madoff Off?

If Obama were to announce right now that he was going to prosecute those who engaged in torture and war crimes, I understand it could trigger a rash of unwanted pardons before Bush left office and therefore it's smart for him to hold his cards close.

But the reason that's being given for not pursuing prosecutions makes little sense:

"My orientation's going to be to move forward," Obama said. The attorney general has to stay above politics and "uphold the Constitution," Obama added, but his administration will focus on "getting things right in the future as opposed to looking at what we got wrong in the past."

Any decision to not pursue those who broke the law is in no way "above politics" -- and if we were going to apply this principle across the board, it would have as Ari Melber notes rather strange implications:

No one argues against prosecuting Bernie Madoff so that the Justice Department can focus on fixing the economy, going forward. In fact, faithfully and uniformly enforcing the law is crucial to "getting things right in the future." Any deterrence produced via criminal sanction is undermined when future, potential offenders see that a law is not actually enforced. People are more likely to follow the law when they see that breaking it carries consequences. This is such a basic foundation of our criminal system, justified by the elemental rationales of deterrence and retribution, it is quite hard to imagine that so many seasoned attorneys and Washington journalists honestly believe that the best way "forward" is to undermine deterrence and the rule of law. 

Obama decision to appoint Eric Holder and Leon Panetta, who have made strong statements against torture, does indeed imply that he intends to "get it right" going forward. 

But it is disconcerting that, as Glenn Greenwald observes, Obama indicated yesterday he is looking for a way to set up a system outside the courts where evidence obtained by torture can be used against Guantanamo detainees. 

Glenn discusses Obama's interview with George Stephanopolous:

What he's saying is quite clear.  There are detainees who the U.S. may not be able to convict in a court of law.  Why not?  Because the evidence that we believe establishes their guilt was obtained by torture, and it is therefore likely inadmissible in our courts (torture-obtained evidence is inadmissible in all courts in the civilized world; one might say it's a defining attribute of being civilized).  But Obama wants to detain them anyway -- even though we can't convict them of anything in our courts of law.  So before he can close Guantanamo, he wants a new, special court to be created -- presumably by an act of Congress -- where evidence obtained by torture (confessions and the like) can be used to justify someone's detention and where, presumably, other safeguards are abolished.   That's what he means when he refers to "creating a process."

The synergy between right-wing fans of 24 who think torture is cool, members of the Bush administration who carried it out and the DC chattering class who mainstreamed it has created a climate where the political threat of directly dealing with the legacy of torture looms large. 

But 70,000 people demanding a Special Prosecutor on change.gov argues that the political price to be paid for sweeping everything under the carpet might be even bigger.

Jane Hamsher blogs at firedoglake.com

Comments

[melpol]

Madoff was a Keynesian. He believed that his system would produce wealth as long as investors had faith in it. Madoff and his investors would still be making money if that faith continued. But due to a falling stock market and sudden withdrawals his system caved in like a deck of cards. It is wrong to accuse Madoff of being a criminal only a guy that thought John Maynard keynes knew what he was talking about. Every investment broker sells stocks on the belief that the customer will make money in the short or long term. There is no written guarantee because it is only speculation. If the customer goes broke due to the unforeseen nobody would accuse the broker of criminal activity. It is no different if a small business is sold on the belief that the flow of customers will continue into the future. The price of every business is based on earnings and faith in future growth and profits. If in time the environment changed and the investor went broke it would be wrong to claim that the seller was a criminal. Capitalism could not flourish without a belief that an investor could make a profit. That belief is based on a future that can not be predicted or guaranteed. If Madoff is made a scapegoat and sent to prison it is a blow to the nature of Capitalism and its beauty.

[rwt1138]

This is a ridiculous premise. Pyramid schemes are not examples of Keynesian economics any more than psychosis is an example of Freudian psychology. Madoff never believed that the scheme could continue indefinitely, because everyone knows a pyramid scheme is inherently unsustainable and eventually grows beyond its own ability to pay out. Did you get this off of some Ayn Rand blog or something, because there is no merit to your argument whatsoever. Maybe you should actually pick up a book on Keynesian economics sometime before you start theorizing what's wrong with it or mangling arguments you overheard someone else make somewhere but didn't understand yourself.

[rwt1138]

It's all part of our new "pre-crime" strategy. If you are "going to" commit a crime (like attack Fort Dix or disrupt the RNC in Minnesota) you can be arrested and detained. Once you have committed a crime, though, that's in the past. We should look forward and not dwell on the past.

Free Bernie!!!

In fact, a retroactive application of this principle could save a tone of money, allowing us to free up much needed prison space for all the people who may be thinking abut committing crimes in the future

[texanna]

If Mr. Obama wants more than one term as President, he's going to have to do something about resolving the crimes of the bushies. We the People are not going to let this thing go -- we are the change he's asked for! He may think there are no consequences for his actions, since he was soundly elected after jabbing us in the eye with his FISA bill vote and his glib response to our outcry. But, he should be careful not to take that as carte blanche to do whatever. The bushies trashed our Constitution and there are too many people that want them to pay for doing so to put on the blinders and just move on.

[ouroborous]

This is why I actually believe that there's a fair chance Obama will end up being a one-termer.

If he says we "have to look forward, not back" etc. etc. and nothing is done (and there's growing evidence that that is *exactly* how this will play out), when election '12 rolls around, the Dems will find that all of a sudden around 10-20% of their base has defected to another party (not Republican, more likely Naderites or libertarians, or something like that) or simply doesn't show up to vote. That's enough to swing the election, and much soul-searching and blame-shifting will ensue.

Opposing this trend would be if Obama were to be absolutely STUNNING in every other area -- the economy, prosecuting the wars in Iraq and Afghanistan, etc. Then he might win enough Republican converts or even sway enough progressive defectors to counter the rule of law crowd.

But betting on a home run is much more foolish, tactically, than betting on a bunch of RBI's. The Change.gov request to appoint a bipartisan Special Prosecutor could, in one move, appease rule of law folks like me, and still leave enough distance to avoid the "witch hunt" claims. It's not just Doing the Right Thing, it's politically clever. That's why this "bipartisan" flip flopping is so baffling to me -- it's actually a tactical mistake, along with being ethically very dubious.

History will tell...

[serena1313]

On one than more occasion Greenwald jumped to conclusions that later proved inaccurate. Without having read the transcript I do not know if this is one of those times.

Obama has been consistent in action and word so far. So until he does otherwise -- which would be a terrible disappointment -- he deserves and should be given the benefit of doubt.

Because of Obama's life-commitment to Justice, Iam disinclined to put much stock in Greenwald's conclusion. Reading the transcript in full could change that notwithstanding.

In the meantime, we should avoid jumping to conclusions.

[ouroborous]

Obama flip-flopped on FISA (on record, I'm tired of re-documenting it for everyone who says "nuh uh," you can do the research on what he said and how he voted if you disagree). Given this, don't you think rule of law folks like Greenwald are justified in being very cautious and reserved in the hopes they pin on Obama?

Greenwald has been wrong, yes. But so has Obama. So has everybody. How is that relevant?

In this case, Greenwald's conclusion (that Obama wants to make a parallel system of justice that allows evidence obtained by torture) is fairly inescapable, providing you accept Glenn's interpretation of Obama's words. Glenn might be wrong, true -- only time will tell -- but if he's not wrong (and the interpretation he gives is a pretty reasonable one, IMO) the conclusion is so morally repugnant that his raising a red flag is *very* warranted.

[AnnfromCA]

There is simply no way the president will gut the CIA.

No way.

You guys are dreaming.

[Gidster]

The last president to try was shot in Dallas......

[Yermammy]

You don't have to gut it. You simply cut off it's head. That's being done.
Yes, we are dreaming. Dreaming of more accountability.
Some dreams are realized and this is one of them.

Way.

Go back to sleep. Your gal lost.

[TomTheAlmostUgly]

I think Obama's trying to sucker Bushie into not pardoning everyone in sight. Then on January 21st, a lot of Bush's people who thought that Obama would wimp out, instead get read their Miranda rights.

[phlashba]

Then you are in for a major disappointment.

[ouroborous]

I seriously hope you're right. But I think you're wrong.

It's kind of funny that one line used to defend Obama is "he says what he means; don't interpret his words beyond the obvious." But then another, growing meme used to defend him is "he isn't saying what he means because he's trying to lull Bush 43 into a false sense of security."

Which is it? Is Obama just a plain-dealing, here's the facts kinda guy? Or is he clever, twisty, saying one thing and meaning another (all in the honorable intent of "getting the bad guys?")

Or maybe we should just stop rationalizing his behaviors and condemn him when he's in the wrong (and praise him when he does good)?

[jhamm1]

YOu're absolutely right.

Naturally, the forthcoming administration will have no reservations whatsoever about prosecuting Madoff, as such legal action is hardly inclined to piss off conservatives. But those in the Bush administration responsible for reprehensible practices? No can do.

NAturally, the new administration will do everything in its power to undermine the "politics of division", even if that includes letting right-wing criminals off the hook who so clearly deserve to be prosecuted.

[Yermammy]

Thanks Jane. Another thing people that are overly protective of Obama don't realize is he's walking into a trap. Barack sits on moral high ground now, but if he uses ANY of the techniques or practices (warrantless wiretapping and/or torture) of this past criminal administration, THAT will be leaked by republican operatives in intelligence, thereby pulling him into their cabal of deceit and lawlessness. Believe me, there's plenty of low level GOP'ers biting at the bit to snare him that way. If Barack doesn't take this investigation up, the world will and it will NOT look good for him at all. We already has culpable people in the DLC that will not like this kind of transparency, but in my eyes they're not real Democrats anyway. If they're too stupid or morally bankrupt to be coerced into this, then they too must pay the consequences. I want my Country back. NOW!

[ouroborous]

Spot on.

This is one of the things I find most baffling; it's not just morally wrong to let the criminals of Bush 43 slide, it's *tactically foolish*.

And Obama may be many things, but he is not foolish. That's why I don't understand this willful blindness to the political traps he's walking into.

To the doubters, answer me this: Obama's vote on FISA this summer. Whether or not you agree with it, answer me this: did his vote HELP his candidacy or HURT it? I think any honest observer would have to agree that -- right or wrong -- the FISA vote (whether it was a "flip flop" or just an honest change of heart) HURT his candidacy a lot more than it helped; it didn't convince a lot of voters to vote FOR him, and it almost convinced a fair number of "rule of law" types (like me) to vote AGAINST him.

This kind of ethical weaseling only hurts Obama. He should just bite the bullet, accept the political cost, and Do the Right Thing.

[murderBYzeN]

Madoff is my HERO!!! He proved how smart people in Hollywood really are...they gave a crook like him all their money....who knew their was so much cash in porn anyhow?

[darthmaul]

Maybe the reason for downplaying investigations is that some Democrats might end up getting in trouble too. Jay Rockefeller, Nancy Pelosi, and Jane Harman were all briefed by the administration on "enhanced" interrogation techniques. Who knows how far it will go. Might this also explain why they seem to be unable to investigate anything?

[Yermammy]

If Obama doesn't the World Court will. It won't look too good for Barack to be "aiding & abetting". As far as those "democrats" that are complicit? They're not Democrats. Plain and Simple. Throw them into prison too.

[Vinca]

HOPEFULLY, THE WORLD COURT, MIGHT PROSECUTE, CHENEY AND BUSH< IT TRULY IS MINDBOGGLING, TO THINK < THEY CAN GO SKIPPING ALONG, AND MAKE LOTS OF MONEY, MAKING SPEECHES

[ro1942]

If Dems. leaders were complicit they should resign. This is much bigger then their carers.

[ckfan]

66,882,230 people voted for Obama - 70,000 people demanding a Special Prospector on change.gov.

Enough said. Let's move forward and fix our economy; end the war.

[Nooneyouknow]

That's 70,000 votes on one small, obscure web site. If we put demand for an independent investigation with subpoena and prosecution powers to a national referendum, it would easily pass. Failing to investigate and prosecute Bushco is the same as giving a blessing to all its illegal, immoral actions. Fortunately, I'm so cynical and disillusioned with our one-party system that I'm not going to be very surprised if Obama decides to bury this.

[WorkingClass]

Obama will bury it. Intellectually he is a giant. Morally he is a politician.

[ckfan]

OBSCURE.?

[cheforacle]

I think you read too much into his comments yesterday. Basically, he said I'm looking forward but Holder, my AG, will prosecute people irrespective of my political situation. There is no point, legally, morally or politically. He's right for many reasons to leave it to the AG. First, there shouldn't be political influence on the AG. Second, Obama will need cooperation at certain times from Republicans. Why talk about potential future prosecutions when its the AG's job anyway. Third, if something Obama said undermined a future prosecution, it would be wrong.

[ArmyCav22]

If the Bush Administration ever did commit "war crimes" as you call them. Why havent they been impeached? And than arrested for there crimes? One reason comes to mind, possibly because no crimes were commited under there watch. You should be thankful that our Commander In Chief has kept us safe these since September 11th.

[darthmaul]

One reason is that typically the people that "win" never go to trial for war crimes. It's sort of like that saying "To the victor go the spoils." As an example take Robert McNamara. He chillingly describes the firebombing of Tokyo: "In a single night we burned to death a hundred thousand Japanese civilians " men, women and children." He doesn't outright admit it, but he does say that if the US had lost, he would certainly have been tried for war crimes.

[karinova]

Under that logic, anyone who commits a crime HASN'T, until they're prosecuted.

Article 3 of the Geneva Conventions says "no torture."
Violation of Article 3 is defined as a "war crime."

[phlashba]

Safe from WHAT? Illegal wiretaps? rendition? torture? the destruction of our constitution and civil liberties? being robbed of our life savings? being the scourge of the world? etc., etc., etc.

[ouroborous]

So, you mean, if a crook commits a crime and gets away with it, he's not a crook?

Really? I mean, you don't see the circularity of your argument? REALLY?

[shadow322]

We can not move forward by again allowing law breakers to escape prosecution with a simple statement like "But this won't happen again." How many times do we have to hear this to realize the rich can get away with just about anythiung as long as they grease the right palms! Going forward means taking care of the business on the table also - not simply brushing it away.

[naschkatze]

I think Obama is holding the cards close to his chest until Eric Holder is confirmed to lessen a Republican fight. Gitmo and Madoff are a bit of apples and oranges, but Holder said when he was nominated, that he would go after criminals both on the street and in the boardrooms. Madoff and ilk will not get off.

[ouroborous]

Hope you're right.