Looking Forward, Looking Back
You've probably seen by now that Barack Obama has answered directly whether or not he will appoint a special prosecutor to investigate the crimes of the Bush Administration. Here's his answer:
Q: The most popular question on your own website is related to this. On change.gov it comes from Bob Fertik of New York City and he asks, ‘Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping.’
OBAMA: We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to be looking at past practices and I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering (ph).
STEPHANOPOULOS: So, no 9/11 commission with Independence subpoena power?
OBAMA: We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward.
The whole "moving forward" meme is really specious. It may work for a particularly morally centered individual like Obama, who I would guess won't take the same steps as the previous regime. But what "moving forward" says to, you know, criminals, is that at this level, you can get away with violating the law. Sure, lots of people will be outraged, and eventually you might even lose an election. But after that, your successor will say it's time to "move forward" and whatever you did will never see a court of law.
It's not like we don't have the evidence on this.
BUSH: One such person who gave us information was Khalid Sheikh Mohammed. … And I’m in the Oval Office and I am told that we have captured Khalid Sheikh Mohammed and the professionals believe he has information necessary to secure the country. So I ask what tools are available for us to find information from him and they gave me a list of tools, and I said are these tools deemed to be legal? And so we got legal opinions before any decision was made.
We know what those list of tools were. We know that KSM was waterboarded, as well as kept in a freezing cell and subject to stress positions. This is torture. And so you have the President of the United States, telling the world on national television that he personally directed the torture of KSM.
Regardless of the effectiveness (and by the way, 90% of what KSM provided was total bullshit and none of it was actionable), regardless of the intent, if our laws mean anything, then George Bush confessed to breaking them. Now, you may want to not hold the low-level interrogators responsible, but SOMEONE needs to be. Because if you don't, we become what amounts to a lawless state, and those criminals who pop up after the current ones will only learn that they will be immune to prosecution:
In looking back at the Watergate era, the glaring problem Olmstead points out is that it didn't prevent another executive with visions of imperial power from trying to enact just that vision. (Actually, it was one of the same executives--Dick Cheney, a Nixon era White House staffer who came into the executive branch hell bent on destroying what limitations the Congress had enacted post-Watergate.) But that's not the fault of the reformers. If anything, it's the fault of those who blocked real reform. It is quite possible that the abject lawlessness of the Bush administration could have been curbed had there been strong institutional, Congressional barriers in place--barriers that should have come as a result of the Church and Pike commissions. Had a real, functioning, standing committee on Intelligence--with professional investigative staff--been in place, there might have been a check on the Bush administration.
Part of our national character is what is generally called "optimism," but which all too often is actually being hell-bent for the future so we don't have to spend time and energy (and guilt and remorse and responsibility) on things past. It's a natural human response to bad experiences--put them behind you, move on and build a better future.
The problem is that there are a few things that are really too big too sweep under our collective carpet; once scuttled there, they continue to seep out at the edges to gnaw on our national psyche. Slavery is under there. Genocide of Native Americans, too. Hiroshima and Nagasaki. Japanese internment camps. Illegal spying on American citizens. Rendition. Torture.
Now, the apologists in the DC establishment have a fistful of excuses to protect the Bush Administration - and in a sense themselves - from prosecution. Charles Fried calls any prosecution of war crimes a "Night of the Long Knives," as if any criminal trial is an unjust attempt to exact revenge. Fried makes a mockery of our system of justice by drawing false equivalences:
"But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf. And the same is even truer of the lower-level officers who followed their orders. (...)
If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people -- albeit with an insufficient sense of moral restraint -- against a terrifying threat by ruthless attackers with no sense of moral restraint at all."
As Hilzoy says, "I can see the difference between Hitler and Dick Cheney. I can also see the difference between Hitler and a shoplifter. That does not mean that I think that the shoplifter should not be punished for his crime."
If motives are now to be considered in jurisprudence toward ACQUITTING people, not toward convicting them, then I think we need a change in the law. Otherwise, there really is no argument here.
The establishment hacks have gone further than simply wanting Obama to let the crimes of the Bush Administration lie fallow. They want him to continue the crimes. That is a matter for another post, but you can see the Overton Window at work here. If conservatives push for the same policies on civil liberties and effective amnesty, then Obama can push back on the policies and take credit for "moving forward."
It's all well and good that civil liberties may be restored under an Obama Administration, but what about for the next President? And the next? And the next? So long as we only rely on the judgment of men and throw away the laws and the accountability, we will inevitably return to this place. "If men were angels, no laws would be necessary..."