David Broder argues today that while he supports accountability for illegal acts and serious breaches of trust, he does not support investigating illegal acts and serious breaches of trust. I have trouble putting these two claims together:
First, we should investigate and hold accountable the guilty:
My friend and fellow columnist Eugene Robinson has written a characteristically passionate and well-reasoned piece commending Attorney General Eric Holder's decision to name a special counsel to examine possible law-breaking by interrogators of terrorist subjects during the last administration.
But I think he is wrong.
First, let me stipulate that I agree on the importance of accountability for illegal acts and for serious breaches of trust by government officials — even at the highest levels. I had no problem with the impeachment proceedings against Richard Nixon, and I called for Bill Clinton to resign when he lied to his Cabinet colleagues and to the country during the Monica Lewinsky scandal.
I'm all for that as well. Now the second claim:
Cheney is not wrong when he asserts that it is a dangerous precedent when a change in power in Washington leads a successor government not just to change the policies of its predecessors but to invoke the criminal justice system against them.
Illegal acts. The policies of the previous administration may have involved–may have involved–illegal acts. Their being policies of an administration does not remove them from the realm of legal and illegal. At least I hope it does not. Broder continues.
I think it is that kind of prospect that led President Obama to state that he was opposed to invoking the criminal justice system, even as he gave Holder the authority to decide the question for himself. Obama's argument has been that he has made the decision to change policy and bring the practices clearly within constitutional bounds — and that should be sufficient.
Accountability for illegal acts. Now for some self-congratulation:
When President Ford pardoned Nixon in 1974, I wrote one of the few columns endorsing his decision, which was made on the basis that it was more important for America to focus on the task of changing the way it would be governed and addressing the current problems. It took a full generation for the decision to be recognized by the John F. Kennedy Library Foundation and others as the act of courage that it had been.
It's hard for me to understand the logic of this argument. If Broder took the position that Clinton should have been impeached for lying in a civil deposition (lying to the country and his cabinet colleagues was not the crime in question, I think) about the character of an adult consensual relationship with a former employee, then how does it not follow that much more serious crimes (such as torture, murder, conspiracy, etc.) deserve at least to be investigated by the criminal justice system?
It strikes me as kind of a no win scenario. If the current executive branch uses the judicial system to show that the executive branch acted in such a way that should have been stopped then by the judicial system, then does that prove that the former executive branch was corrupt or that the judicial branch is controlled by whomever runs the executive branch at the time?
Andrew, you have conflated the judicial system with the judicial branch of the federal government. The Department of Justice is probably considered part of the judicial system, but it is not part of the judicial branch, it is part of the executive. I do not see how the judicial branch could have acted during the Bush administration to stop the illegal acts that seemed to have taken place because such acts were not brought in front of it for judgment or even review. Even if it was shown that the Department of Justice during the Bush administration is the one that help to decide that such acts were just fine, I fail to see how that would logically entail that the current administration uses the DoJ in the same way, eventhough it is part of the executive branch.
The only danger I can find in this precedent is the prospect that the Obama administration could also be investigated for constitutional abuses like extraordinary rendition, continued funding for mercenary groups like “Xe” which operate outside the realm of national and international law, and financial assistance to foreign states with a history of human rights violations and illegitimate leadership.
Mttk,
You are right, I had made the mistake of believing that the Department of Justice answered to the Supreme Court. This was a misunderstanding on my part.
Jem,
Don’t worry. The United States has been ignoring World Court decisions involving the contra forces and Nicaragua for decades now. If any precedent exists it’s that the President of the United States is above the unless he voluntarily steps down like Nixon did.