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Archive for Sunday, May 3, 2009

Prosecuting past presidents is poor precendent

May 3, 2009

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When Thomas Jefferson succeeded John Adams, a contest that put America on such a different footing that it is remembered today as the Revolution of 1800, he did not seek to put members of the Adams administration on trial. When Warren G. Harding followed Woodrow Wilson in the White House in 1921, he did not put Edith Galt Wilson on trial for usurping the office of the presidency after Wilson’s stroke. When Bill Clinton ended a dozen years of Republican rule in 1993, he did not try to prosecute Ronald Reagan and George H.W. Bush for deceiving the Congress over the Iran-Contra affair.

In the span of 220 years there have been 43 changes of presidents, and always this rule, never written but never broken, has prevailed: Presidents let their predecessors be judged by the merciless jury of history, not by the temporal verdicts of courts.

Predecessors off-limits

Commentators and historians often apply a facile shorthand to describe the fundamental principle (and surpassing greatness) of the American political system: Here the transfer of power from one party to another, or from one president to another, is accomplished by ballots, not bullets. That shorthand has an unspoken corollary: Here presidents and parties do not criminalize the policies of their predecessors.

That is why the nascent effort to investigate and perhaps prosecute members of the Bush administration is a dramatic departure from American tradition. It may be true that the Bush administration supported anti-terrorism policies that were deplorable, immoral — and ultimately ineffective. But is the writing of legal briefs on highly controversial, contestable and, even now, unresolved questions of law criminal?

This is no defense of torture nor of the tactics the Bush administration may have used in recent years; press accounts of those episodes that emerged late last month were shocking. But far below the surface of the noisy Washington and cable-television conversation is a quieter but very serious debate, sparked by the circulation in elite legal circles in recent days of an Internet version of a forthcoming article in the Yale Law Journal that argues that “all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before.”

This article, by William Ranney Levi, is significant as much for its intellectual provenance as it is for its contents. Levi, part of one of the most distinguished legal families in the nation, exposed his argument to the rigorous review of several leading legal minds, conservative and liberal, some of whom doubtlessly disagree with him.

He cites consultations with Jack L. Goldsmith, the conservative Harvard law professor who resigned from the Bush Justice Department and later expressed qualms over the Bush anti-terrorism legal rationale; Harold H. Koh, the dean of the Yale Law School and a leading human rights activist who has been nominated by Obama to be legal adviser to the State Department; Mariano-Florentino Cuellar, a Stanford law professor in the Obama inner ring; and Martin S. Lederman, a Georgetown law professor and fierce Bush critic who is the president’s choice for a leadership position in the powerful and prestigious Office of Legal Counsel at the Justice Department.

Plausible policies

The meaning of all of this is not that the Bush policies were smart, prudent, moral or effective. They may not have been any of those things. The meaning, however, is that the Bush policies were legally plausible.

That almost isn’t the point. The pre-eminent point here is that in the United States, sitting presidents and winning political parties don’t sit in legal judgment of their predecessors. If they do not like their policies, and many times they do not, they change policies. They do not sue their predecessors or seek to punish them legally. This custom has prevailed in times of severe crisis as much as in serene times.

There are myriad examples. Jimmy Carter did not seek to prosecute Henry A. Kissinger for complicity in the invasion of Cambodia and involvement in Chile, two actions that might be regarded as peculiarly subject to legal review. Richard M. Nixon did not seek to prosecute Lyndon B. Johnson for the illegal wiretapping of Martin Luther King’s bathroom and bedroom, which King did not know about until Thurgood Marshall informed him in 1964.

In the latter two cases the explanations were political, not legal. The wiretapping of King was conducted on the authority of J. Edgar Hoover, the FBI director whom Nixon dared not alienate. He had to deal with Hoover as well, and he had his own secrets to protect, or soon would. Moreover, a man who was going to conduct his own taping in the White House was not likely to be predisposed to take legal action against taping by his predecessor.

But in this case, politics is not an insubstantial factor, perhaps for the good of the system. If the Obama team, or the Democrats acting separately, continue down the road of legal review, they will assure that their successors do the same thing once they are out of office. If you think the politics of 2009 are rough, you will shudder when you contemplate the politics of 2013 or 2017.

Checks and balances

“You have to be very careful when and how and what you do in this arena,” Democratic Sen. John F. Kerry of Massachusetts, who was separated from the presidency in 2004 by the electoral votes of only Ohio, said in a conversation the other day.

The American system already has a set of checks and balances. It does not need another one. Nor does a president who has vowed a new bipartisanship need a legal inquisition to distract attention from his real priorities, which are his national-security challenges, the economic downturn, education, health care and climate change.

The greatest wisdom on this subject comes from an honorary American. “If the present tries to sit in judgment of the past,” Winston Churchill wrote, “it will lose the future.”

My guess is that Obama will call a halt to this or let the natural state of Washington prevail by sitting back and watching while the passions cool and nothing happens. About six weeks ago George W. Bush said that he would refrain from criticizing his successor because Obama “deserves my silence.” Perhaps Obama, for the good of his own presidency and for the good of the presidency itself, will return the favor.

Comments

fms 5 years, 7 months ago

"Legally plausible" is all that's required of our politicians? I think that's a very questionable position. We have trials for a reason.

jaywalker 5 years, 7 months ago

The headline is "a lot of alliteration from anxious anchors placed in powerful posts."

Interesting article.

canyon_wren 5 years, 7 months ago

I think the word in the headline is "precedent," not "precendent," isn't it?

I agree that this is a dangerous precedent to establish and one the Obama administration will certainly live to regret. There are very interesting times ahead of us.

bisky1 5 years, 7 months ago

yeah but this is george bush, after all he stole the 2000 election and we hate him for this and we have to be vindicated, and we will never forget. the liberal left a community of hate.

RonBurgandy 5 years, 7 months ago

Ha. Wrong on all accounts. Prosecute what is illegal, that is precedent.

just_another_bozo_on_this_bus 5 years, 7 months ago

"When Bill Clinton ended a dozen years of Republican rule in 1993, he did not try to prosecute Ronald Reagan and George H.W. Bush for deceiving the Congress over the Iran-Contra affair."

Well, HW covered his tracks pretty well by preemptively pardoning anyone who might testify against him.

If crimes are committed, (and clearly there was rampant criminality within BushCo) the president has two options-- prosecute or pardon. He can't just sweep them under the rug. Obama needs to choose between these two options. If he chooses anything else, we're little more than a Banana Republic.

roger_o_thornhill 5 years, 7 months ago

Never hold accountable! Never apologize! Never show weakness! Never admit ANY wrongdoing! We're Americans goddamit! If God thought there was anything wrong with the way this country does things "He" wouldn't have allowed the U.S. to become the most powerful, most righteous, most awesome country in the history of the universe!

Satirical 5 years, 7 months ago

For all those who think "BushCo" or haven't been held accountable you are wrong. The Bush administration, and the Republican have been held accountable by the same method used whenever a public official makes a policy decision; political accountability. They lost at the polls by a huge margin.

Often political accountability can be the swiftest and harshest form of punishment.

Do people really want to prosecute lawyers for writing legal opinions? If so, no lawyer would ever want to write a legal opinion for the POTUS for fear of future prosecution if a future judge (of course they are never biased) happens to disagree with their legal opinion. Then we have future Presidents making decisions being ignorant of the law, which leads to even more future lawlessness.

I realize the liberals feel they must do something to stay on top the political scene (not by doing anything good, but by trying to attack the opposition), but this political game is insane, and there are no winners in the end.

scott3460 5 years, 7 months ago

Gerald Ford failed to prosecute Richard Nixon for the crimes Nixon committed. That failure enboldened the bush administration. Ignoring criminal activity at the White House only guarantees the illegalities will be attempted again by future administrations.

Satirical 5 years, 7 months ago

Do the liberals remember the Japanese American internment during WWII that FDR ordered? Imagine if the Supreme Court made (what we now realize was) the right decision and declared FDR’s Executive Order unconstitutional. Would Truman then have a duty to prosecute anyone in the Roosevelt Administration or any lawyers working for him?

Suppose Ronald Reagan, who signed legislation apologizing for the interment on behalf of the U.S. government and paid 1.6 billion in reparations, instead decided to go further and prosecute anyone who was still alive who had a hand in that process. FDR, his administration, and his lawyers did something that was obviously in violation of the U.S. Constitution under standards at that time. From some of your arguments it seems that is the only proper course of action he could have taken. Since they weren’t prosecuted does that mean we are just a Banana Republic? Or, do we instead learn from the mistakes of the past, remedy the wrong, and move forward?

But my guess is people on the LJWorld blog would rather talk at each other than to each other, because any opinion that doesn't agree with yours is obviously invalid and not worthy of discussion...only insults. Yeah democracy.

Satirical 5 years, 7 months ago

Scott3460…

What Nixon did was not a policy decision, it was a political one. Apples and oranges to the current situation.

scott3460 5 years, 7 months ago

Campaign fraud, political espionage, improper tax audits, illegal wiretapping, hush money, obstruction of justic, cover ups, etc....all things that were uncovered during the Watergate scandal and pardoned.

Summerguuurl007 5 years, 7 months ago

"But my guess is people on the LJWorld blog would rather talk at each other than to each other, because any opinion that doesn't agree with yours is obviously invalid and not worthy of discussion…only insults."

I think it's the new headline for the Democratic Party- The party that always tries to 'defend' free speech with things such as the Fairness Doctrine.

Satirical 5 years, 7 months ago

Scott3460…

How has anything you wrote contradicted my statement? Try reading next time.

beatrice 5 years, 7 months ago

Sati, good points, especially recalling FDR's use of internment camps. I do think war crimes were committed under Bush, but despite being a liberal, "yellow dog" Democrat I can honestly say that I don't think prosecuting those in the Bush administration is in the best interest of our country. I agree with you on this issue.

Democrats won the election, have a real majority in Congress, and are now set to begin nominating new Supreme Court justices. In this new role of leadership we need to move forward and improve on the errors of the past administration, but not prosecute those who erred.

We may not like letting criminals get away with their crimes, but like the website name suggests, I feel it is indeed time to Move On!

just_another_bozo_on_this_bus 5 years, 7 months ago

"From some of your arguments it seems that is the only proper course of action he could have taken. Since they weren’t prosecuted does that mean we are just a Banana Republic?"

It certainly wasn't the opinion I expressed. And it isn't simply a matter of opinion. By constitutional mandate, there are two available options-- prosecute or pardon. That previous law-breaking by previous administrations, Republican and Democrat, was swept under the rug is no justification for continuing that practice.

Unless if this oath means nothing at all:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Or perhaps we should just amend it to say "when politically expedient?"

just_another_bozo_on_this_bus 5 years, 7 months ago

"Gerald Ford failed to prosecute Richard Nixon for the crimes Nixon committed. "

The wisdom of that action is certainly debatable, but at least he acknowledged Nixon's criminal offenses, and took a constitutionally permitted action.

The Justice Dept. should appoint a special prosecutor, and once investigations are complete, Obama can issue pardons and/or allow grand juries to indict as the law and the evidence require.

gccs14r 5 years, 7 months ago

+1, especially since they're charged with enforcing the law.

scott3460 5 years, 7 months ago

"The wisdom of that action is certainly debatable, but at least he acknowledged Nixon's criminal offenses, and took a constitutionally permitted action."

Good point.

My overall objection to Obama's sweeping the torture and other abuses of the bush administration under the rug is that I suspect there are far greater crimes that we do not yet know about. Unless there is rigorous examination in the form of a prosecution or serious 'truth comission" effort we will never know the extent to which the bush administration abused us. If we don't know, we cannot prevent similar abuses in the future.

tonymontana 5 years, 7 months ago

I'm saying when the president does it, it's NOT illegal!

yankeevet 5 years, 7 months ago

Concentrate on the enemy; not each other

Satirical 5 years, 7 months ago

Beatrice...

Wow, we should mark this day on the calendar : )

Satirical 5 years, 7 months ago

Bozo…

You seem to forget option # 3: Don’t prosecute. Prosecutors are not required to prosecute every law violation. To require otherwise would swamp the system. It is always at the discretion of the prosecutor.

Satirical 5 years, 7 months ago

On a side note, there are several on this blog that ignore the arguments against prosecution and just continue to beat the same drum. They may want to ask themselves:

(1) What was it done that was against the law?
(2) Was it policy error or personal error?
(3) When was it decided the action or inaction was against the law?
(4) Does our Constitution allow ex post facto laws?
(5) How many Presidents in the past of made policy decisions that were later ruled unconstitutional?
(6) Should all of those Presidents be prosecuted? (7) Is prosecution the only way a party or administration is held accountable?

It seems there are several on this blog that are historically myopic. They fail to understand the past, and don’t realize what this could mean for the future. Every future President would prosecute the previous administration for what it now deems (even though at the time it may not have been) breaking the law. This would cause even more partisanship, because once your side lost power, it would be a forgone conclusion you would be charged with crimes, since all the next president would need to do is change the law and then make them apply retroactively.

dandelion 5 years, 7 months ago

If they broke the law they should be prosecuted. Is the president, former or not, above the law?

just_another_bozo_on_this_bus 5 years, 7 months ago

"(1) What was it done that was against the law?"

The US is a signatory to this convention...

Violating it is the same as violation of US law, and it was clearly violated from Bush and Cheney on down.

"(2) Was it policy error or personal error?"

If it broke the laws against torture, that's entirely moot.

"(3) When was it decided the action or inaction was against the law?"

Under the Reagan Administration.

"(4) Does our Constitution allow ex post facto laws?"

There is no ex-post-facto law-making involved here.

"(5) How many Presidents in the past of made policy decisions that were later ruled unconstitutional?"

Basically the same question as #4, so not germane.

"(6) Should all of those Presidents be prosecuted?"

If they aren't dead, and the statute of limitations hasn't come into effect, why not?

"(7) Is prosecution the only way a party or administration is held accountable?"

Impeachment was a possibility, but it's too late for that. So at this point, the answer is "yes." But once the special prosecutor's investigation is complete, and those deemed "deserving" could be pardoned.

"Prosecutors are not required to prosecute every law violation. To require otherwise would swamp the system. It is always at the discretion of the prosecutor."

Prosecutors don't prosecute when there is a good reason, such as, the infraction being a minor one, the available evidence making a conviction too unlikely or a bargain for immunity made in exchange for testimony against those who are more culpable. If a prosecution takes place, prosectors should have the same leeway. But as has been said here many times, just sweeping it under a rug is hardly "prosecutorial descretion."

just_another_bozo_on_this_bus 5 years, 7 months ago

"Every future President would prosecute the previous administration for what it now deems (even though at the time it may not have been) breaking the law. "

Well, if presidents are essentially immune from any sort of prosecution for their actions in office, what's to prevent them from ignoring and and every law on the books, including every provision of the constitution and of every treaty the US is a signatory to? Because that's exactly what you are advocating.

just_another_bozo_on_this_bus 5 years, 7 months ago

And as I already pointed out, "ex post facto" does not come into this in any way.

Eileen Jones 5 years, 7 months ago

An investigation is in order, by a special prosecutor because the investigations by committee are nothing but whitewashes.

If the former president and his administration did nothing wrong they have nothing to fear and they should welcome the scrutiny and the chance to end the speculation.

Investigate them, and sooner rather than later.

rousseau108 5 years, 7 months ago

"Precendent"? Really? How about "precedent"?

Richard Heckler 5 years, 7 months ago

Bring on the special prosecutor I say.

Under the Bush/Cheney watch 15 terrorists from a variety of countries were able to highjack 4 large commercial aircraft simultaneously. The rest is history. How did this group get around big brother for 2 years? Big brother is everywhere!

Under the watch of Bush/Cheney over 3,000 people died on 9/11/01 and over 4000 USA soldiers thus far in Iraq... an illegal war based on lies from the White House. Yes the White House lied to congress,citizens and the world.

The 9/11/01 culprits were located a few blocks from NSA headquarters for 2 years under the watch of Gen Hayden yet the FBI never received authority to investigate or keep them under surveillance...why?

Two known 9/11/01 terrorists were under surveillance in Yemen by the CIA until the CIA lost them. They entered the USA by way of San Diego legally all the while listed as possible terrorist yet were not challenged in San Diego...Why? The FBI was never notified...why?

YES! Bring on the special prosecutor. Of course the republican party does not want their party investigated for possible criminal activity. That would not look good at election time.

Richard Heckler 5 years, 7 months ago

Is criminal activity something unusual for the republican party? I should say not!

The repub/neoconservative/PNAC party is largest law breaker in our nations history:

LIED TO THE NATION about Social Security: http://www.dollarsandsense.org/archives/2005/0505orr.html

Isn't it odd each time our nations financial institutions crumble there are Bush family near by and a McCain still in office?

SAVINGS AND LOAN THEFT - Who has history with financial institutions going south such as the savings and loan scandal? Republicans! http://rationalrevolution0.tripod.com/war/bush_family_and_the_s.htm

http://www.commondreams.org/views04/0208-05.htm

http://www.inthesetimes.com/article/4120/we_arm_the_world/

McCain: The Most Reprehensible of the Keating Five. The story of "the Keating Five" has become a scandal rivaling Teapot Dome and Watergate ... http://www.phoenixnewtimes.com/1989-11-29/news/mccain-the-most-reprehensible-of-the-keating-five/1

CRIME: IRAN CONTRA - Who hosted the Iran Contra secret illegal sale of weapons? Republicans! http://www.gwu.edu/~nsarchiv/nsa/publications/irancontra/irancon.html http://www.pbs.org/wgbh/amex/reagan/peopleevents/pande08.html

CRIME: Who brought the nation Iran Contra number 2? Republicans! http://www.democracynow.org/2008/3/5/iran_contra_20_how_the_bush

CRIME: WATERGATE- Which party illegally spied on the democrats to win an election? Republicans! Watergate! http://www.washingtonpost.com/wp-srv/politics/special/watergate/index.html

CRIME: Which party held secret energy meetings and refused our elected officials its' content and who attended? GW Bush and the republicans!

CRIME: LIED ABOUT IRAQ - Which party lied to congress and the world,went against military advice and created the worst strategic blunder in the history of the USA aka Iraq War? Republican Party! http://www.msnbc.msn.com/id/10348418/

Which party has held secret oil deals with Saudi Arabia? Republicans! http://www.democracynow.org/2004/4/20/did_bush_cut_secret_oil_deal

CRIME: Secret Oil deals for Iraq Oil- Republicans! http://www.pubrecord.org/nationworld/262.html?task=view

jayhawklawrence 5 years, 7 months ago

The American people want to put the mistakes of the last administration(s) behind them and move on. But you put a bunch of lawyers with over sized egos in a room and you get what you get.

The fact of the matter is that they will be severely punished at the polls if they let something like this drag out and nobody will win. In the end, it will be the patience of the American people that they are testing and we have had enough of mudslinging politics.

Dick Cheney and anyone else who has been speaking out in favor of torture as a standard government policy (Republicans) has been relegated to the dung heap of history anyone. How much more do you want to beat a dead horse anyway?

grammaddy 5 years, 7 months ago

No one is above the law....No one! Nixon was smart enough to make a deal with Ford before he resigned. W, not so much. He was stupid enough to let Cheney grab more power than he should have. His arrogance will do him in. He's already done enough damage to his own party that they may not survive.

jayhawklawrence 5 years, 7 months ago

In the end, the American people are the law.

AjiDeGallina 5 years, 7 months ago

No one is above the law..that is the foundation of this country.

Those that wish bush were above the law are traitors as much as Benedict Arnold and do more to deteriorate American freedom than does Al-Quada.

Traitors, I spit on you.

gontek 5 years, 7 months ago

past presidents set precedences of present presidents pardoning past presidents possibly pending procecution.

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