Legal accountability

The New York Times on 01/10/09 has three op-ed writers weighing in on trials for senior-level law-breakers in the Cheney-Bush administration.

Charles Fried of Harvard Law School in History’s Verdict says it would be "savage" to prosecute those responsible for torture, malicious political prosecutions, massive corruption and the like. The civilized thing is to just wait until the next Republican administration takes the Cheney program to the next level of the Unitary Executive. Why, prosecuting these fine public servants would be like Hitler killing the SA leaders in the Night of the Long Knives in 1934? You don't want to be like Hitler, do you? If foreigners commit war crimes and we're on the other side, then sure we can prosecute them. Let's just be content with remembering that a few of these fine folks from the outgoing administration got a little carried away here and there.

Dalia Lithwick of Slate in Forgive Not makes a good argument for actual prosecution, though she also seems to think that John Conyers' proposal for a commission is a good idea. Given the weight of Beltway Village opinion against legal accountability, I think that establishing such a commission in the absence of prosecutions (which would presumably be handled by a special prosecutor) would be worse than nothing. Conyers is proposing yet another bipartisan commission. Sure, hey, Dick Cheney will be a private citizen by then. Maybe we can appoint him as the Republican co-chair with "bipartisan" alibi-man Lee Hamilton to balance him out on the Democratic side. After all, Cheney knows quite a bit about the subject matter already. He's an actual expert in it, as a matter of fact. She also makes the argument that by just forgetting and forgiving, "We are also forgiving ourselves." Say what? Yes, the public has a responsibility to maintain democracy. But the perpetrators of torture are the ones guilty of crimes, not the majority of the public that opposed those practices.

Jack Balkin of Yale Law School, whose Balkinization blog is a valuable resource on a range of legal and constitutional issues, in A Body of Inquiries also argues for truth commissions to investigate this administration's misdeeds. He thinks that the legl type opinions from administration legal authorities would likely shield them from prosecution. But that sounds like a very dubious assumption to me. Just having your Mob lawyer say it's okay doesn't mean that it's legal. The basic problem with the truth-commission(s)-only approach is that shining light on all those misdeeds is fine. But the Republicans know about them already and support them. They would prefer to not have them talked about, sure. But unless some meaningful legal deterrent is established - and it seems to be only actual prosecutions can do that in this situation - the next Republican administration can be expected to resume the same practices. And worse.

If there had been substantial resistance within the Republican Party to this administration rogue-state practices internally and externally, then there would at least be some more reasonable hope that truth commissions could be effective even without prosecutions. But after Watergate, Iran-Contra and now eight years of far worse abuses supported virtually unanimously by the Republicans in Congress, that assumption sounds empty to me.

I'm tempted to say that this is a good example of the concept of repressive tolerance. With respectable opinion hostile to the idea of prosecuting Republicans for outrageous violations of domestic and international law on very substantial issues, the Times provides a forum for three people to address the issue of legal accountablility. Two of the three advocate the Village conventional wisdom. The third advocates prosecutions though also with a nod to what sounds like a toothless and worse-than-useless bipartisan commission.

The dissenting position - in this case, the notion that public officials have to obey the law and that something that violates the rule of law so fundamentally as the torture policy can't be treated like some political pecadillo - gets a hearing in the leading newspaper, where it can be safely disregarded by those devoted to the conventional wisdom.

Tags: bush administration, bush doctrine, torture