Criminalization of Policy

Unfortunately, today marks a sad new chapter in the history of our nation. By not ruling out the criminal prosecution of the Bush Administration attorneys who drafted the memos presenting the legal basis for the use of coercive interrogation against Islamist terrorists, President Obama has legitimized the criminal investigation of every Presidential Administration by its successor. When asked about whether or not Bush Administration officials should be prosecuted for drafting these memos, the President responded by saying that this, “is going to be more of a decision for the Attorney General within the parameters of various laws and I don't want to prejudge that…"

The consequences of succeeding administrations investigating their predecessors should give every American pause for several reasons. First, it will prevent the current occupant of the Oval Office, whomever he happens to be, from receiving frank and open advice from his advisers and attorneys. Staff members will not be willing to engage in a free exchange of ideas with administration colleagues if they believe that they will be subject to criminal prosecution for their analyses at some indeterminate time in the future. Essentially, Mr. Obama has left open the possibility of criminal prosecution because one lawyer has a different legal analysis than another. Having given off the record legal advise to several government officials during my career as a lawyer, I will be very concerned if this is the new legal standard for criminal prosecution.

Next, it becomes difficult to recruit qualified people to work in the government. Why would anyone want to give up a lucrative career in the private sector to enter public service if the results of that work culminate in a jail sentence? The relatively small salary of a public official, combined with an overly intrusive vetting process already make a career in a Presidential administration less than ideal. The threat of criminal prosecution may be the final straw that prevents qualified individuals from serving their nation.

Also, Mr. Obama’s statement opens the possibility of the criminalization of policy differences between Administrations. Clearly, in the immediate aftermath of the 9/11 attacks, President Bush was presented with circumstances that are different than those facing President Obama today. President Bush made the decision to allow for coercive interrogations (and, I believe correctly) based upon the world as it existed at that time. Mr. Bush put in place policies that some may find objectionable. President Obama, as Mr. Bush’s successor, is free to make the determination that Mr. Bush’s policies were incorrect, inappropriate and/or no longer necessary. However, criminalizing the policy decisions of his predecessor establishes an incredibly poor precedent for all of Mr. Obama’s successors.

Before President Obama allows Attorney General Eric Holder to bring charges against Bush Administration officials, he should engage in a thought experiment. Let’s assume that in his role as Commander-in-Chief, President Obama gives the order to kill three foreign nationals who have taken hostage the captain of a US flagged merchant ship. Let’s also assume that the ages of those kidnappers are unknown, but there is a good amount of evidence that these perpetrators are minors. Also, let’s assume that some believe that those kidnappers were part of a militia that played a legitimate rule in the defense of their nation. Finally, let’s assume that the captain was not really in any imminent danger at the moment that the kidnappers were killed by US Navy Seals.

Now let’s fast forward four years and Mr. Obama is retired back to the South Side of Chicago. His successor believes that there is never justification for the killing of minors and that any such act is a crime and should be prosecuted, unless the circumstances at the time are proven, beyond a reasonable doubt, to have shown that the captain was in imminent danger at the exact moment the order to kill was given. Would President Obama be subject to criminal prosecution for his order to kill those kidnappers? It seems to me that this is not outside the realm of possibility. And, if you say that the scenario that I have presented is not plausible, think again. The leftwing blogosphere in this nation is ripe with chatter over all of the issues that I described.

Remember, Mr. President, what goes around comes around. I hate the thought of the image of you wearing the orange jump suit, picking up trash along the side of the highway. That’s no way for a distinguished public servant to end his career.


Anonymous said...

What you are describing is not the criminalization of policy. It is an attempt by the Bush administration to politicize laws that it did not want to follow.

What it did was not legal. The laws that Bush administration officials violated included the War Crimes Act of 1996; its application to WOT was upheld by the Supreme Court in 2006 in a case called Hamdan vs Rumsfeld.

The issue here is whether the President and his appointees are above the law. Perhaps it would have been more in keeping with the intent of the constitution had Congress used its impeachment power back in 2005 or 2006. If Obama and Holder want to avoid even the appearance of politicization, they should appoint a special prosecutor. What they should not do is neglect their duty and not enforce the law.

Steven L. Baerson said...

Of course, special prosecutors are never political. Ask those on the left about Ken Starr and those on the right about Pat Fitzgerald. Besides, I do not think that there is a statutory basis for special prosecutors any longer.

Chris Janc said...

I see a fatal flaw in your argument: do you really think Obama will retire on the South Side of Chicago? Can't see it.

Anonymous said...

The law that called for special prosecutors to be appointed by a panel of judges has expired. The AG can appoint a special counsel, as was done with Fitzgerald.

As with a lot of legal issues, politics and conflicts abound. You can't eliminate them, only try to minimize their effects. You don't think Bush commuting Libby's sentance was political?

Steven L. Baerson said...

Less political than Bill Clinton pardoning his brother, Marc Rich and FALN terrorists.

Anonymous said...

Nice to get one of Libby's clients on your list.

I didn't know about the FALN commutations. The Wikipedia page is very interesting.

viachicago said...

In response to Anonymous, whether the interrogation activities constituted torture is a matter of opinion. Clearly these are not torture in the manner that our enemy practices it e.g. removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers. In fact, the memos show the Bush Administration trying to locate and avoid crossing the legal line at which coercive interrogation becomes torture.

Let's remember that the techniques used on the detainees had all been used for years on our own military as part of our Survival Evasion Resistance escape training program. Also, many members of Congress, including Democrats, were briefed on the specific interrogation methods being used and did not raise objections (until of course the political winds changed and they could score cheap political points by doing so). Clearly this is an area of controversy, but to criminalize these disputes over policy is a horrible precedent to set.