Wednesday, January 14, 2009


Justice vs Practicality - The Bush Years

There is much talk lately about what should be done about all the illegal acts committed during the Bush administration. The Democrats are already talking about "moving forward" and not focusing on the past. This is a claim to practicality, but is just an excuse.

There have been clear indications for much of the past 50 years that GOP administrations are more willing to violate the laws. These fall into two broad categories. The easier one to deal with has to do with standard corruption. Selling government influence, taking bribes in the form of campaign contributions or promises of future employment, or favors while in office.

This has become especially outrageous during the Bush years as a total lack of desire to prosecute, or even investigate such misdeeds, rose to an unprecedented state. Even private firms have become generally immune to punishment for violating the law.

The second violation of the law has to do with government actions meant to further legitimate aims, but which themselves break the laws to achieve their aims. Right now those in the forefront have to do with sanctioning torture, violating the privacy provisions of the Fourth Amendment and obstructing investigations by the legislative branch.

As the Clinton years showed the GOP is willing to use legal mechanisms for political aims. The impeachment of Clinton being the pinnacle of their efforts. There were many others, including the refusal to allow federal judges to be seated and misuse of the filibuster.

Now if the Dems turn around and start to prosecute the violations of government policy the they will run the risk that the next time the GOP is in power they will even engage in more politically motivated persecutions. This is what happens in third world countries which only pretend to be democracies. At each change of government all the prior leaders are at risk of prosecution. Such a course of action leads to the complete destruction of any adherence to the rule of law. Since the GOP has already shown that they are willing to play this game, timidity by the Dems is unwise. You don't defeat a bully by giving in to him.

So what should be done?

I suggest two courses of action. The activities which are based upon traditional monetary corruption should be left to the appropriate judicial departments to investigate. This, of course, means that the hacks and cronies have to be removed from the departments. Obama seems to be making some moves in this direction, but a lot depends upon appointments of US Attorneys and the willingness of local jurisdictions to investigate regional crimes. The regulatory agencies have to be restored as well.

As for policy-based misdeeds. There needs to be away to counter the already-forming critique that any investigations are just "partisan politics". Existing law protects most government officers even if they do the most stupid or ill-conceived things as long as they do them in good faith and as part of their official duties. So "heckuva job" Brownie never gets charged for being incompetent.

There is nothing to stop congress, however, from holding hearings on what went wrong and who was responsible. This is similar to the truth and reconciliation commissions that have arisen elsewhere. I'm not sure about the forgiveness part of the process, people in the US don't seem very willing to ever admit to a mistake or apologize.

In addition to hearings, the Obama administration should sign the treaty which established the International Criminal Court. If there are injured parties, say Guantanamo detainees, who want to bring charges at the ICC then this would allow them to do so. International law allows countries to arrest people accused of being war criminals as the UK did with Pinochet. If the ICC decides to issue a warrant for Gonzales or Cheney or Rumsfeld then this is not a political act by the Obama administration.

If the US is not willing to adhere to international law, including taking responsibility when it breaks it, then why do they expect others to do so. We are quick to condemn Al Qaeda or Hamas for their actions, but don't want to be judged for ours. This is not the rule of law, it is the law of the jungle - might makes right.

How about, Mr. Constitutional Lawyer president? Join the ICC.
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