The Obama administration apparently is giving a green light for liberal zealots in Congress and in the Justice Department to go after former Bush-administration lawyers.
We are supposed to damn these out-of-office lawyers because, in a time of national crisis, they gave advice that was construed as permitting torture. In three exceptional cases, interrogators waterboarded terrorist detainees — at least one of them responsible for the murder of 3,000 Americans. I emphasize the adverb “apparently,” because — as has been the case from campaign-finance reform to the imposition of the highest ethical standards in history for Cabinet nominations — with the Obama administration, any ethical proclamation is usually at odds with the unethical reality.
The administration should tread carefully, since it is about to embark on something nefarious that could tear apart the country.
POSTFACTO JUSTICE?
First, remember that the Constitution already permits ongoing audit of the executive branch. Watergate prompted Nixon’s resignation in face of impending impeachment. Iran-Contra almost destroyed the Reagan administration. President Clinton’s sexual antics with a female subordinate, and lying about it subsequently (speaking no truth to those without power), prompted his impeachment. Nancy Pelosi, who was briefed on the options of waterboarding in the dark days following 9/11, had ample opportunity to hold congressional hearings on Bush’s overemphasis on homeland security. Her outrage now rings false, an unseemly ploy to hide her complicity in what she once thought was responsible governance.
Such ongoing audit is not just the purview of congressional committee hearings. Between 2001 and 2008, Congress could easily have forced the appointment of a special ethics prosecutor, or even a torture prosecutor. Indeed, we have the frightening precedent of Mr. Fitzgerald’s convicting Scooter Libby, in which the supposedly covert Ms. Plame was not covert, and the supposed initial leaker was not the targeted Cheneyist, Mr. Libby, but the protected Powellist, Mr. Armitage.
In other words, Americans deal with perceived executive abuses, both effectively and clumsily, as they transpire. Such contemporary audit avoids the sort of postfacto, partisan damnation of former leaders so common in unstable dictatorships.
Prior to President Obama, Americans did not go in for this sort of thing, because we knew where it led.
Politics and conditions change. What a conservative administration does at a time of national crisis to protect the public may subsequently, in the calm of an eighth consecutive year of safety, seem in retrospect illiberal to a new liberal government.
Dwight Eisenhower did not open hearings to pave the way for indictment of federal officials of the Roosevelt administration or California lawyers working for Gov. Earl Warren, who in concert planned and carried out the forced internment of American citizens into camps. Much less did he bring Truman & Co. up on charges of using nuclear weapons to incinerate Japanese civilians.
Warren Harding and Calvin Coolidge did not seek indictment of Woodrow Wilson’s Justice Department, which did everything from strengthening segregation to jailing war critics and helping foster the odious vigilantes of the American Protective League. No subsequent administration tried to arrest Lincoln’s Cabinet members for signing off on the suspension of habeas corpus after Fort Sumter — unconstitutional decrees that eventually would mean some 15,000 Americans were held without charges for indeterminate length.
President Obama would not a want a putative President Palin to begin hearings on who ordered the targeted executions of two suspected Somali pirates, taken out in the middle of protracted negotiations. He would not wish a President Sanford one day to indict those Obama officials who approved the assassination-by-Predator-missile of suspected terrorists and their families in Pakistan — without habeas corpus, Miranda rights, or avenues of appeal. He would not enjoy a future President Giuliani’s bringing indictments of Obama officials over the NSA’s exceeding its allotted e-mail intercepts, or the CIA’s conducting overseas renditions of suspected terrorists without providing them the benefits of U.S. law.
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