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 Office of Legal Counsel. 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.”