The Gateway to the Ultimate Prize

Unfortunately, today the Attorney General of the United States, Eric Holder, has engaged in behavior that endangers all American citizens. He has appointed a special prosecutor that will investigate CIA interrogators who questioned some of the most dangerous individuals on the planet in an effort to protect all of us. Even CIA Director Leon Panetta is opposed to this and has reportedly said that he will resign as a result.

There have already been investigations of those who allegedly abused the terrorist detainees. These investigations resulted in exactly one prosecution and subsequent conviction (a CIA contractor abused a terrorist with a flashlight).

By allowing this to happen, President Obama has started down the path of investigating the Bush Administration for its conduct of the War on Terror (which according to the Obama Administration does not exist). This is the gateway to prosecution of the Bush Administration officials who drafted the memos on enhanced interrogation techniques. However, I do not think that the witch hunt will stop there. The ultimate prize for the far left of the Democratic Party is the prosecution of Vice President Cheney. That is, in large part, what this is all about. I also would hate to think that this action is being taken by the Administration in an effort to take away the focus away from their failing health care plan.

So, what we have here in the criminalization of policy between succeeding administrations. Every American should think long and hard as to whether this is what they want. This type of behavior is more suited to banana republics where the current government sets up “truth commissions” to criminalize the policies of its predecessor.

The consequences to our peaceful transfer of power between administrations will be undermined. 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. Mr. Obama has left open the possibility of criminal prosecution because one lawyer has a different legal analysis than another.

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 currently facing President Obama. President Bush made the decision to allow for enhanced interrogations 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.

In addition, it has a chilling effect on those heroic Americans who are currently serving in uniform or working in the intelligence community. How motivated will they be to pursue their craft in attempting to obtain information from terrorists in their custody that is vital to our national security? Based these investigations, it is very possible that critical information that could save the lives of thousands of US citizens will never be obtained so as to stop a terrorist attack.

The President is once again showing us that he is not up to the task of being Commander-in-Chief. He is continuing to show our enemies that he is weak. It is particularly troubling that at the exact same time that Mr. Obama is begging our allies to take the terrorists that are currently (and thankfully) detained at Guantanamo Bay, he is now looking to incarcerate brave American citizens who answered their country’s call to service. What message does that send to those who would do us harm?

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.

No Politicization of the Justice Department Here. Move Along Folks...

RightSideProject Founder and Senior Editor Steven L. Baerson was kind enough last month to post on the blatantly unconstitutional DC Voting Rights Act. His years of education and legal practice helped him conclude that since the Constitution explicitly limits membership in the House of Representatives to States and because the District of Columbia is, wait for it, not a State, it can't be a member of the House. Think of it like math: if 1 does not equal 2, then 2 does not equal 1. Simple.

So simple the Justice Department, per today's WaPo, agrees:

Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue.

Except of course, when Justice's boss, and his boss, disagree (again, per today's WaPo):

But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster. (emphasis mine)

Yep, the Attorney General of the United States ordered up a different legal conclusion from a more politically sympathetic shop inside Justice (Solicitor General vs. OLC), one consistent with his boss' preferences. Holder's spokesman denied there was a political element to Holder's decision, which of course means it's entirely political.

This certainly wouldn't be the Justice Department politicizing itself, would it? We all know only Republicans would ever do such a thing.

This is not an April Fool's joke.