Looking Forward

by hilzoy

I didn't have a problem with President Obama's announcement that he wasn't going to prosecute CIA officers who relied on the guidance they got from the OLC. I'm uneasy about prosecuting people who rely on the OLC, which they ought to be able to rely on. (I think that relying on legal interpretations offered by the people charged with interpreting the law for the executive branch is very different from "just following orders.") And I feel much, much more strongly about holding the people who devised this policy accountable than about the people who implemented it (if they did so according to what they took to be the law.)

That's why I found today's White House briefing so infuriating:

"Q So I understand, you're saying that people in the CIA who followed through in what they were told was legal, they should not be prosecuted. But why not the Bush administration lawyers who, in the eyes of a lot of your supporters on the left, twisted the law -- why are they not being held accountable?

MR. GIBBS: The President is focused on looking forward, that's why."

You know what? I'm focused on looking forward too. And as I gaze into my crystal ball, I see a world in which members of the executive branch take it for granted that they can do whatever they want with impunity. Why not break the law? Why not eavesdrop on Americans? Why not torture people? Why not detain citizens indefinitely without charges? Heck, why not impose martial law and make yourself dictator for life? There is nothing to stop the people who make these decisions. They have nothing to fear. Because once they've made them, their actions are back there, in the past that no one ever wants to look at.

I also see a world in which everyone takes it for granted that there are two kinds of people, as far as the law is concerned. If most people tried to make the case that prosecuting their criminal acts was just "looking backwards", or a sign that the prosecutor was motivated by a desire for retribution, they'd be laughed out of court. Imagine the likely reaction if your average crack dealer were to urge the judge not to dwell on the past, or if someone who used accounting fraud to flip houses told offered a prosecutor the chance to be "very Mandelalike in the sense [of] saying let the past be the past and let us move into the future", or if I were pulled over for speeding and, when asked if I knew how fast I was going, replied that "Some things in life need to be mysterious ... Sometimes you need to just keep walking." I don't think any of us would get very far.

And yet, somehow, when people say these things about members of the Bush administration, no one bats an eye. Of course it would be going too far to actually prosecute them if they broke the law. That's just not done.

I do not want a world in which members of my government can break the law with impunity. I do not want a world in which some people are above the law. In a perfect world, we would not need to prosecute people to achieve these results. But the past eight years have shown us that we don't live in that world. 

As I said, I don't care about the prosecutions of the CIA officers. But I care immensely about prosecuting Cheney, Addington, Yoo, Bybee, Bradbury, and people like them. And I care precisely because I am looking to the future. We can choose to be a nation of laws in which criminals of any station are held accountable, or we can just hope that no one like George W. Bush is ever elected again. 

I know which option I choose.

In the meantime, though, impeaching Jay Bybee would be a start. There's a petition here.

***

UPDATE: This, from the NYT, is a bit better:

"Mr. Obama said it was time to admit "mistakes" and "move forward." But there were signs that he might not be able to avoid a protracted inquiry into the use of interrogation techniques that the president’s top aides and many critics say crossed the line into torture.

And while Mr. Obama vowed not to prosecute C.I.A. officers for acting on legal advice, on Monday aides did not rule out legal sanctions for the Bush lawyers who developed the legal basis for the use of the techniques. (...)

On Sunday, Rahm Emanuel, the White House chief of staff, said on the ABC News program “This Week” that "those who devised policy" also "should not be prosecuted." But administration officials said Monday that Mr. Emanuel had meant the officials who ordered the policies carried out, not the lawyers who provided the legal rationale."

Comments

[Christian G.]

I'm guessing the Nuremberg tribunal might have set a precedent for this as well.

http://www.ess.uwe.ac.uk/WCC/ghctrial6.htm "> http://www.ess.uwe.ac.uk/WCC/ghctrial6.htm

" International Law condemns those who, due to their actual power to shape and influence the policy of their nation, prepare for, or lead their country into or in an aggressive war. But we do not find that, at the present stage of development, International Law declares as criminals those below that level who, in the execution of this war policy, act as the instruments of the policy makers. Anybody who is on the policy level and participates in the war policy is liable to punishment. But those under them cannot be punished for the crimes of others. The misdeed of the policy makers is all the greater in as much as they use the great mass of the soldiers and officers to carry out an international crime ; however, the individual soldier or officer below the policy level is but the policy makers’ instrument, finding himself, as he does, under the rigid discipline which is necessary for and peculiar to military organization.

" We do not hesitate to state that it would have been eminently desirable had the Commanders of the German Armed Forces refused to implement the policy of the Third Reich by means of aggressive war. It would have been creditable to them not to contribute to the cataclysmic catastrophe. This would have been the honourable and righteous thing to do ; it would have been in the interest of their State. Had they done so they would have served their fatherland and humanity also. But however much their failure is morally reprimandable, we are of the opinion and hold that International Common Law, at the time they so acted, had not developed to the point of making the participation of military officers below the policy-making or policy-influencing level into a criminal offence in and of itself."

[Generic Educated Successful Smart American]

Nell, I don't know where you get the idea that torture is not legalizable. If Congress were to make it legal, it would be legal - unless the Supreme Court found it unconstitutional.

TP, when I say "we" elected him, I speak for the country. We have one president at a time, and he represents you whether you like it or not.

Vote carefully.

[Nell]

Were Congress to legalize torture, then everyone who committed acts of torture would be subject to arrest and prosecution the minute they set foot outside the United States, as would those who introduced the legislation, and the U.S. president who signed rather than vetoed it.

It is not possible for a country which has signed, ratified, and passed into law implementing statutes for the Convention Against Torture to do anything that legalizes torture. Those acts themselves would form the basis for a charge of conspiracy to torture.

[Gary Farber]

"I'm not talking about any war, I'm talking about the Iraq war,"

That's not what you wrote, but I'm glad you've clarified what you meant.

I think there's a fair case that the Iraq war was illegal, as a war of aggression, and amn't inclined to argue otherwise, although IANAL, let alone a specialist in international law.