« Slumdog Millionaire | Main | kids in the economic recovery plan »

January 14, 2009

against impunity

(Tampa airport) The rule of law means that individuals may not be prosecuted unless they have violated specific laws. Of course, when they do violate such laws, they should be punished. The people who most need to be punished are those with power, above all those who wield public power secretly.

It's important that officials in the national security apparatus react to any illegal proposal with immediate resistance. They must think, "We can't do that--it's against the law." There's a widespread view that to expect such scruples is naive. In popular fiction, presidents and CIA agents casually break laws all the time. But I actually believe that respect for the law (perhaps tinged by fear of the law) is very widespread in the intelligence and military worlds. We saw it when numerous officials balked at illegal acts in the Bush years.

Yet there is reason to believe that certain high Bush appointees violated laws. One example was the deliberate authorization of domestic wiretaps in violation of the FISA law. Regardless of whether that law is good, the president's men had no right to ignore it. Another obvious set of cases involved torture. No court has proven that officials like Donald Rumsfeld violated US laws by authorizing torture--but that charge is believable enough to be investigated. The Senate Armed Services Committee says, for instance, that Rumsfeld directly caused detainee abuse at Guatanamo; and Susan J. Crawford has concluded that some of that abuse constituted "torture." That amounts to a claim that Rumsfeld committed a serious crime.

All the political considerations argue against an investigation by the executive branch under President Obama. The public has never shown much concern about the mistreatment of foreign prisoners. Most people define "torture" very stringently. I think voters are mad about the war, but invading Iraq was legal under US law. I don't think they are mad about the abuse of people like Mohammed al-Qahtani, the alleged 20th hijacker. In general, prosecuting the previous administration looks vindictive. And investigating the intelligence agencies could make them into very formidable enemies of the new president.

These political considerations should count. President Obama will have difficult tasks to accomplish in the essential interests of the nation, including deep economic reform during wartime. He cannot win many battles at once; he must choose. Not to address a given issue isn't a failure--it can be an essential tactical choice.

On the other hand, we cannot tolerate a culture of impunity. If high officials are basically known to have broken the law, and nothing is done about it, the rule of law suffers. Impunity is common around the world. To the extent we have avoided it, that is one of our great strengths.

I think I would prefer to see investigations proceed without much connection to the new administration. Civil lawsuits would be great if they have any chance of succeeding (although I suspect they are impossible in national security cases). Congressional investigations are welcome as long as Congress manages to get its other work done as well. We might be lucky if federal attorneys chose to bring cases in their own districts. And I suppose the Obama Administration could launch a slow, deliberate, "Truth Commission"-style process that would take a couple of years to get near the senior Bush people. That way, the economic agenda would have succeeded or failed by the time there were any high-profile hearings.

January 14, 2009 5:00 PM | category: none


Site Meter