Above the Law?
What Krugman said:
Last Sunday President-elect Barack Obama was asked whether he would seek an investigation of possible crimes by the Bush administration. “I don’t believe that anybody is above the law,” he responded, but “we need to look forward as opposed to looking backwards.”
I’m sorry, but if we don’t have an inquest into what happened during the Bush years — and nearly everyone has taken Mr. Obama’s remarks to mean that we won’t — this means that those who hold power are indeed above the law because they don’t face any consequences if they abuse their power.
And, look, the idea of enforcing the laws inherently involves the idea of looking backwards. If John Yoo walked down Pennsylvania Avenue and shot a guy in the head, we wouldn’t say “we need to look forward as opposed to looking backwards” even though it would be as true as ever that it’s important to look forward. And more than one person has died as a result of Bush-era torture policies. The idea of an accountability-free executive is bound to have some appeal to a new administration. On the one hand, embracing it earns you plaudits for bipartisanship. On the other hand, you’re the executive now, so why not embrace it? But for the rest of us it’s not such a great deal.
UPDATE: And recall Brian Beutler’s point here that the illegality of, say, waterboarding was an established principle of American law for decades before Bush came around. We tried Japanese soldiers as war criminals for doing it during World War II. And it’s not like we took “well you have to understand, the Americans were a serious security threat” to be a viable defense.
77 Responses to “Above the Law?”
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January 16th, 2009 at 8:36 am
Given that Obama’s going to be president in a week, and given that he’s committed to expanding war in Afghanistan and Pakistan, and given that it’s hard to find peacetime presidents who haven’t committed indictable offenses, why would President Changey McChange want to establish a precedent of holding presidents accountable for their crimes?
January 16th, 2009 at 8:44 am
The real problem is the issue of political capital. I think Obama is simply making sure he doesn’t burn any goodwill with the republicans in congress — a party whose members, remember, support Bush by 75%.
Where should such an inquest take place? Anything done under an Obama administration would be adding oil to fire on the right’s fire for Obama. Would this, perhaps, be an appropriate place for a UN office to step in, where Obama could claim neutrality while still working with Congress and thus actually being able to get a policy agenda implemented?
January 16th, 2009 at 8:52 am
Let’s not bicker and argue over who tortured who…
(And yes, I know that reference isn’t particularly original, but the absurdity of the conventional-wisdom position on this can only really be captured by Monty Python.)
January 16th, 2009 at 9:00 am
Let’s just say, for a moment, that Barack Obama and Eric Holder dispensed with the equivocation and said, much to the delight of everyone on the left (and, more generally, to those who love and respect the Constitution), “we’re going to investigate and, if necessary, prosecute, the Bush administration for war crimes.”
What do you think would happen then? You think that Bush would hesitate in issuing blanket pardons for his administration? I certainly don’t.
January 16th, 2009 at 9:07 am
I imagine millions would be grateful were Obama to direct the I.R.S. to apply his legal philosophy to delinquent tax bills.
January 16th, 2009 at 9:12 am
natthedem,
Do you think Obama has a secret plan to start investigations once Bush is gone?
January 16th, 2009 at 9:20 am
“We tried Japanese soldiers as war criminals for doing it during World War II. And it’s not like we took “well you have to understand, the Americans were a serious security threat” to be a viable defense.”
But we didn’t try any Americans for the Japanese internment camps, and that’s the correct historical WWII analogy…
January 16th, 2009 at 9:24 am
I know, how about we SHUT THE HELL UP about this for right now, look forward to January 20, when George Bush loses his pardon power, and THEN look backwards?
Sound like a plan?
January 16th, 2009 at 9:29 am
how about we SHUT THE HELL UP about this for right now, look forward to January 20, when George Bush loses his pardon power, and THEN look backwards?
Um, because you think Bush might read the comments to this blog and go, “Oh shit, we’re in trouble, get me my pardon pen”? I realize that, as a Podestista, Matt is now part of the most powerful faction in DC, but, y’know, c’mon.
January 16th, 2009 at 9:30 am
joe from Lowell has a point. Haven’t the last eight years proven the value and wisdom of skipping that step in any decision process wherein possible ramifications are discussed in advance?
January 16th, 2009 at 9:32 am
Who said anything about skipping anything?
I want this all aired.
I’d just perfer to see it come to something, instead of being pre-emptively cut off because it’s more fun to make noise than be disciplined.
January 16th, 2009 at 9:34 am
Chances that delaying the noise-making about torture prosecutions for a week would forestall efforts to see justice done: negligeable.
Chances that a series of presdiential pardons would do so: very high.
Trying to pin down Obama on this before Inauguration Day is foolish and self-indulgent.
January 16th, 2009 at 9:35 am
Petey: While the Japanese internment is a closer political analogy, the act in question is actually torture, which if it applies to the internment situation (I honestly am unaware, and regret if it does) is not known to most people.
Personally, I see at most a vanishingly small probability of some sort of ‘truth commission’, and no chance that any high officials of the Executive will be held accountable for any crimes stemming out of their main policies.
I think it’s a pretty well established principle in the U.S. that high Executive and other political officials are only held accountable for violations of more petty levels of law, or of failing to properly consult Congress, but never for the actual making or carrying out of major criminal policies.
Nixon may have been caught for the burglary, but the carpet bombing slaughter of Cambodia (which after nearly a decade of less intense bombing handed power to the lunatic Khmer Rouge guerrillas)? I don’t think anything would ever have been done about that. As President, you can slaughter any number of brown people, but be careful in lying to Congress about it.
January 16th, 2009 at 9:36 am
Do you think Obama has a secret plan to start investigations once Bush is gone?
Questions like this always remind me of that episode of “West Wing” when Josh Lyman stands in for CJ Cregg at a press briefing and ends up touting the president’s “secret plan to fight inflation.” But I digress…
To answer your question simply: I don’t know.
I don’t know if Obama has any plans to start investigations once Bush is gone. I think he might want to, but is reluctant to spend the political capital on that when the American people are struggling so mightily. But that’s just conjecture…I really don’t know.
What I do know, though, is I’d rather have the option of investigation and prosecution than not…and I think any public mention of investigations would surely lead to us not having an option.
January 16th, 2009 at 9:38 am
An “inquest” would be a bad idea. Setting up a special entity to investigate the villainies of your predecessor as president would be disasterous for the country.
Each criminal event should be pursued aggressively by the apparatus in place. At any points where conflicts of interest might arise, eliminate them. Switch military investigations to Justice, or, if Justice employees might be involved, appoint special prosecuters etc. Allow low level people to deal for information. If a pattern of hierarchical
illegal activity is uncovered and officially recognized (by indictments at least), then form some special entity to investigate.
You can’t just form a “Get Bush” tribunal.
January 16th, 2009 at 9:45 am
“Nixon may have been caught for the burglary, but the carpet bombing slaughter of Cambodia (which after nearly a decade of less intense bombing handed power to the lunatic Khmer Rouge guerrillas)? I don’t think anything would ever have been done about that.”
FWIW, Cambodia was actually in the first article of impeachment, and the House Judiciary committee voted against impeaching on that article, the only one they voted against…
January 16th, 2009 at 9:47 am
Given the incredible cowardice of the entire Democratic apparatchik in Congress, how is it that anybody can think that Obama is going to pursue this stuff in any forceful manner?
I was just watching James Bamford on Youtube on Democracy Now! talking about how the NSA has rooms in AT&T’s main telecom hub in Missouri – similar to the room in San Francisco that was reported – and how the Dems and the Republicans signed off on making the wiretapping they do legal, and now the Surveillance Court has just said it’s all legal.
And guess who runs the wiretapping in those rooms, one in Verizon and one in AT&T? Two ISRAELI companies.
If the Dems caved on universal wiretapping, who here really believes they’re going to support war crimes investigations against the previous PRESIDENT?
You’re joking, right?
Bush and Cheney and probably everybody but some really low-level CIA and DoD operations guys are going to walk. Get used to it.
January 16th, 2009 at 9:51 am
Another thing we did not do as we contemplated war crimes charges against Japanese and Germans and their eager helpers after WWII was agree that because they had the findings of one of their tame lawyers what they did was okay. The Germans in particular tried to rely on that excuse and it wasn’t accepted then and shouldn’t be accepted now.
As for calling a temporary halt to keeping this issue live, we were told over and over after no WMD were found in Iraq and following Katrina that “now is not the time to play the blame game; there will be plenty of time for that later,” except ‘later’ never came. If we’ve learned one thing during the last eight years it ought to be that ignoring a serious issue or letting it slide in the hope that legitimate concerns will be addressed as soon as conditions are more favorable simply does not work in any way other than to give criminal activities cover.
January 16th, 2009 at 9:59 am
But we didn’t try any Americans for the Japanese internment camps, and that’s the correct historical WWII analogy…
Yes, if you admit that the correct analogy is to a situation in which the US unjustly imprisoned innocent people based solely on their ethnicity and national background.
January 16th, 2009 at 10:02 am
By the way, while admitting I don’t know Obama’s intentions, I again think the best approach would be to establish a public record first, and only then commence criminal investigations and prosecutions.
How can you establish a public record first and prosecutions later? The only way to get a public record is to get the perpetrators on the record, but they’ll never admit what they did if they fear prosecution. Therefore there’ll be pressure to give them immunity, but once given that can be used as a shield to stop later prosecutions. If, however, you just move straight to prosecutions, you are able to punish the guilty while also setting out a clear record.
January 16th, 2009 at 10:03 am
Richard Stephen Hack,
The President has enormous influence in setting the nation’s political agenda and the terms of the debate. That the Congressional Democrats went along meekly with George Bush’s wiretapping efforts during the post 9/11 period tells us only that Congressional Democrats can be easily pushed around by the president.
If the new President who, oh yeah, is also the most gifted speaker and media figure in a generation, sets an agenda of ending torture and investigating the involvement of government officials in it, then I’d expect the Democrats in Congress to go along with him, too.
Not to mention, there are quite a few More and Better Democrats in town, such as Senator Sheldon Whitehouse, who has already announced that he intends to investigate the issue regardless of what Obama does.
January 16th, 2009 at 10:10 am
Bernie Maddoff should hold a news conference and announce his solidarity with the incoming president.
“Indeed, given the gravity of the various problems America is facing today, it’s essential that America look forward, not backward.”
January 16th, 2009 at 10:19 am
“…the most gifted speaker and media figure in a generation…”
That. Cup of coffee.
January 16th, 2009 at 10:27 am
I would be shocked at widespread pardons by the Bush Admin.
If there’s anything the past 8 years have shown is that the man is in denial. Yesterday’s farewell speech to the nation only underscored this point.
To pardon administration officials for war crimes or torture would be tantamount to an admission that they were guilty of such things. That’s something I think Bush is incapable of admitting.
January 16th, 2009 at 10:29 am
Petey: Wow. If that was something I had ever known, then I had completely forgotten it. I guess then some tiny degree of credit should be given for coming close to accountability for carpet bombing Cambodia.
Al: President Palin will not have an Attorney General. They will decide that that’s too fancy a term. Under President Palin we gon’ have a Top Lawman.
January 16th, 2009 at 10:32 am
I think Petey’s analogy above is spot-on. There will be no prosecution, and likely no “truth commission” for Bush’s war crimes. For better or for worse (OK, for worse), large numbers of Americans, and almost all of our opinion makers, feel that Bush is justified in whatever he’s done to “keep America safe.”
Once Obama has had some success in re-starting the economy, he might have the political capital to spend on hearings to establish the historical record and to get some legislation passed unequivocall criminalizing such actions in the future.
But to do so now would bring down a shitstorm of criticism from the establishment that could easily destroy his preisdency. I don’t like the fact that I live in a country so sure of its righteousness that reflection on its failures is impossible, but I don’t want Obama to fail because of that unfortunate fact.
January 16th, 2009 at 10:37 am
“If the new President who, oh yeah, is also the most gifted speaker and media figure in a generation, sets an agenda of ending torture and investigating the involvement of government officials in it, then I’d expect the Democrats in Congress to go along with him, too.”
You’re new to this country, aren’t you? Democrats only roll over for Republicans. Democratic presidents give every third-rate Democratic congressman the chance to show that they can obstruct and grandstand with the best of them.
January 16th, 2009 at 10:43 am
On the other hand, in addition to being in denial in general, Bush also has a tendency to rely on bad legal advice, and not just in an ass-covering way (e.g., early on, they actually seemed to think some of their arguments could withstand scrutiny in court). So I actually wonder if they could get too cute with pardons and end up making them ineffective.
I’m no expert in this. But seems to me that this whole issue of torture and war crimes is problematic in that it pervades many levels of the Bush Admin, CIA and Pentagon. You don’t just have the top people to consider, but the whole chain of command down to the individual soldiers and CIA folks on the line. This is in contrast to say the Valerie Plame leak investigation which inevitably led back to just a small handful of top admin people.
So if Bush pardons a few top Justice and Defense officials of torture-related war crimes. Where does that leave all the underlings below them who followed stated or unstated orders? And if they are pardoned, seems to me that opens them up to subpoena before Congress where they would have no ability to refuse or take the 5th, or even negotiate about it.
I just don’t see it happening. And if it did, it would make the Marc Rich fiasco seem trivial.
January 16th, 2009 at 10:54 am
I’m sorry, but does anyone have any idea what prosecuting the past crimes of the Bush Administration would actually entail? We’re not just talking about a show trial where a couple of designated bad guys get paraded in front of the cameras for a few days and then shipped off to Siberia.
Slobodan Milosevic was finally arrested in 2001 and died nearly 5 years later in custody, his war crimes trial still unfinished. So, we’re talking about starting a legal process that might outlast Obama’s 1st term and I’m sure the trial of Bush and company would be just wonderful for the 2010 midterms and 2012 elections.
Secondly, exactly how many folks are going to be prosecuted? Bush and Cheney, surely. Rumsfeld? Powell? Rice? Ashcroft? Gonzales? Tenet? Bolton? What about their aides and the people under them and the people under them? What about the Democrats in Congress? Are they unidicted co-conspirators or just material witnesses? And what about all the non-governmental, private entities and individuals that particpated in it all?
Thirdly, as much as it seems Bush and company deserve to be prosecuted…do we really want to use the law to repair a failure of politics? The Bush Administration’s behavior should have been restrained through political action by Democrats, Republicans and the public in general. All three utterly failed to do their duty in this situation. I’m not sure using the legal system as a band-aid on a collapsed political system is a great notion.
Mike
January 16th, 2009 at 11:11 am
Is there a consequential downside (to those bequeathed the favor) to Bush issuing pardons to the entire federal employee personnel directory for any and all crimes possibly committed during his two terms? Ford seemingly established a precedent for forgiving generic, non-specific violations of the law in his treatment of Nixon. I’ve read varying opinions concerning extending that to a group of persons without naming each individually. Can that be done? Certainly getting let off the hook for torture or war crimes couldn’t be anything but good news for the pardoned. If you wanted to state publicly your particular gift wasn’t warranted because you were guiltless so what? Bush could still sign the papers and you just continue to maintain you were innocent of any suspicions. Bush would obviously be in for a rash of shit over it but his legacy is in the toilet for eternity and he likely knows it. Why not grant everyone a clean slate?
January 16th, 2009 at 11:15 am
Kent Says:
January 16th, 2009 at 10:43 am
“I’m no expert in this.”
Kent speaks for the whole thread including the blogger. Krugman will get some post-43 columns with diminishing visciousness and pertinance to the day at hand. Conyers will get (possibly) a dog & pony show like he’s been conducting in Rayburn Bldg basements the last couple of years with Kucinich, Jason Leopold and Amy Goodman. The nation will be treated to the spectacle of Conyers and Kucinich actually attempting to run coherent sentences together. The American people will giggle then yawn at the distinguished Reps. SNL will CGI Urkel to play Kucinich.
There’s nothing there: Evidentiary, or actionable. Have fun storming the BDS castle.
January 16th, 2009 at 11:40 am
Does anybody think Obama would be making these arguments if his kids or wife were tortured?
January 16th, 2009 at 11:40 am
Actually, we don’t even need to look to our prosecution of Japanese or German war criminals. During the occupation of the Philippines and the insurrection there, we convicted and hung U.S. soldiers for waterboarding. This is a pretty settled area of American law.
January 16th, 2009 at 11:57 am
I’m not new to the country. An immensely popular Democratic President with a large Congressional majority is new to the country.
January 16th, 2009 at 12:28 pm
“The scope of any prosecutions could be handled by ordinary criminal law and procedure: basically, you would prosecute people who committed serious crimes.”
Did you watch the OJ Simpson trial? That’s what happens to “ordinary criminal law and procedure” when it involves and ex-football star and bad actor, so multiply that by about a billion for every trial involving a former President and his administration.
I might agree with you on the moral and ethical arguments for prosecutions, but you clearly don’t have the slightest idea of the practical consequences of that.
Mike
January 16th, 2009 at 12:59 pm
I see what krugman is saying, but wouldn’t it be a bummer if Obama could not get heatlh care reform (or other big agendas) passed because of big time partisan resentment resulting from this kind of thing. it’d be like bush screwing us over and over again. i mean yea, nothing would get done, but we’d all feel happy that bushies are in disgraced and in jail. Right?
January 16th, 2009 at 2:59 pm
“There’s nothing there: Evidentiary, or actionable. Have fun storming the BDS castle.”
Ah, the banality of evil.
The fact is, in a healthy democracy truly committed to the rule of law and to life free from arbitrary goverment harassment, Bush, Cheney, et al. would have been dragged out of their respective spider holes and thrown under the nearest prison in early 2003.
The fact that there are so many asshats like you that think that aggressive war, detention wihtout due process, and torture are nothing to get upset about is why this country has squnadered almost all of its good will across the globe.
January 16th, 2009 at 4:18 pm
What difference does it make? Congressional Democrats will just declare whatever they did retroactively legal.
January 16th, 2009 at 4:57 pm
Isn’t every prosecution or investigation “looking back” rather than looking forward ?
January 16th, 2009 at 5:50 pm
It would be a bad tactical move by Obama; dividing the country at a time when unity could result in some real, substantial, forward looking, progressive policy.
If the principles involved are so great that investigation and prosecution overides that utility – and I’m inclined to agree that it may – let congress (finally) assume its rightful role and responsibilities. It is their job to investigate and, along with the courts, define the limits of executive power and to recommend the actions necessary to ensure that the executive branch is not held above the laws they were sworn to protect. Leave Obama to reverse and implement sound policy in these areas – allow him to lead by example. He can best aid both the process and the country by neither impeding nor cheerleading from the sidelines as congress excercises their proper constitutional mandate.
I do, however, fear that congress lacks the requisite balls, brains and nuance to conduct an honest, responsible and effective investigative process free from undue politicking and demagoguery – one that would enable us to come out the other end with a fairly clear consensus on these important principles and some kind of relatively satisfying legal consequence. But that’s not Obama’s fault or responsibility either. So I say stop expending energy on demanding that Obama play pick-up on congress’s shortcomings and refocus that energy on the body to which it rightly belongs and on developing a sound plan for directing the inquiry.
January 16th, 2009 at 7:43 pm
It would be a bad tactical move by Obama; dividing the country at a time when unity could result in some real, substantial, forward looking, progressive policy.
A healthy majority would like to see some appropriate investigations into Bush Administration wrongdoing. The only folks who would be put off by that are the hard-core Republicans, and those folks will fight to the death and see us in hell before they jump on the unity train.
It might divide the wapo and gray lady ed boards, but cripes I hope they’re being heartily ignored. (And doubt it at the same time.)
January 16th, 2009 at 8:23 pm
If Obama and the Democrats waste the country’s time with endless investigations of the Bush administration’s interrogation procedures at a time when we are facing the worst financial crisis since the Great Depression, they will surely suffer. People want the economy fixed. People want jobs and health care. People want to be safe from terrorism in America. They do not want their elected officials wasting their time on partisan attacks and silly investigations that lead nowhere but backwards.
January 16th, 2009 at 9:43 pm
I would love more than anything to see Bush, Cheney, Yoo, et al. held accountable for what they did. Besides being illegal, it was disgusting. The problem is that the country is so screwed up right now; this issue would without question impede the pursuit of the rest of Obama’s agenda. The president has to prioritize. As sorry as I am to say this, there are other things that are much more important.
Also, everyone arguing that there needs to be accountability should calm down a bit. George W. Bush is already going down as perhaps the worst president in our history. He’s already had his trial and been convicted in a sense. No future president will feel the slightest urge to repeat his mistakes.
January 16th, 2009 at 10:13 pm
This was my comment on Krugman’s column that I submitted to nytimes.com:
“Nearly everyone” is likely wrong. The president has to look forward in times such as these, but an entire independent branch of government is charged with doing little other than look back: the Department of Justice. Further, the Attorney General’s independence from the president in determining what federal crimes are prosecuted results in Obama’s forward-looking preference to be of rather little consequence in this matter. Rather than looking to a president-elect charged with guiding us out of crisis — a necessarily forward-looking enterprise — for guidance on the direction of future DOJ decisions, why not take a breath and look to the five-plus hours of testimony given yesterday by the person nominated to head that most independent arm of the Executive Branch?
January 16th, 2009 at 10:28 pm
A further question I have for Krugman relates to terminology: what does he mean by the term “inquest”? I understand what it drives at obviously, but it is so unspecific that is skirts nearly the entire issue at hand. If he is not referring to Justice’s discretionary prerogative to determine what actions to investigate and potentially prosecute under federal statutes, then in his inquest exactly what persons or bodies does Krugman say should be invested by whom with how much authority to investigate which matters matters using how much power to compel cooperation, resulting in what potential consequences for which particular types of wrongdoing?
And if by “inquest” he was referring to standard DOJ determinations about investigation and prosecution (in which case statements by Obama before he takes office can be fairly easily dismissed regardless of what “nearly everyone” concludes about them), then why didn’t he just say that?
I think it was a poorly written column.
January 17th, 2009 at 1:02 am
No investigation, no indictments, no prosecutions, no convictions, no punishment. No moral basis for the American state and it becomes the fourth reich.
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