Dispatches from the Creation Wars

President-Elect Barack Obama has sent a pretty clear signal that Bush administration officials are in the clear, saying on ABC’s Meet the Press;

I don’t believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards.

Unfortunately, Obama doesn’t get it. If prosecuting people for their crimes was “looking backward,” there’d be no need to do it. Why did we prosecute poor Slobodan Miloscevic? He was out of power after all, so why didn’t we just “look forward?”

Looking forward, I see the prospect of future presidents thinking they can commit any crimes they want without fearing retribution. That’s a pretty good argument for prosecuting high-level Bush officials (I’m looking at you, Don R.), if not Bush himself.


It’s likely that Obama recognizes that a Republican backlash could jeopardize his domestic policy program. It probably would, but what, really, is the higher priority for America: 10% renewable energy by the end of his term, or constraining presidents from committing war crimes?

Harvard Law prof Charles Fried makes a stunningly inapt (and inept) defense of the no investigation policy.

But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf…

Their repudiation this Nov. 4 and the public, historical memory of them is the aptest response to what they did.

So Fried believes a thief who murders his victim is worse than people who abuse the public trust, shred the Constitution, imprison innocent people without trial, and torture and kill other innocent people? That’s a strange position for a guy who normally takes a deontological position, arguing that some actions are wrong in themselves, regardless of their purposes or consequences.

And his argument that our “historical memory of them” is sufficient response is pathetically naive. Will our historical memory serve as a sufficient threat to prevent future presidential crimes? Call me cynical, but I’ll lay odds against it.

Obama inadvertantly signals that it won’t, saying;
I do want them looking over their shoulder. Unless we’re really just sick and tired of these things called “popular sovereignty” and “the rule of law” and just want to take the leash off those who govern us.

Today on NPR, Fried also offered the argument that a prosecution would open the door to frivolous persecutions of future Democratic presidents by angry and vengeful Republicans. Doubtless it would, but that’s just why Obama should pursue a very carefully targeted investigation that pursues only the most serious crimes. In contrast, any Republican investigation of, say, minor campaign finance violations, would look petty and spiteful. For a guy who argues political memory is the solution, he doesn’t seem to have much faith in the power of political disapproval to discipline politicians.

The growth of presidential power throughout the last century is frightening, and has radically transformed our political system away from the truly republican one envisioned by the founders to something that is increasingly close to a presidential system absent any real checks and balances. We tend to overlook this as long as one of our own is in power, but power is power and it tends to corrupt regardless of the party label of the one who wields it. Obama may have run on a platform of “change,” but day by day that slogan is ringing ever more hollow.

[As an aside, I find it rather silly that the media always brings on law professors, like Fried, to talk about topics like this, which are inherently more political than legal. In my experience, law profs tend to be strong on, surprise surprise, law, but much weaker on having a solid understanding of politics in general. The two are not--and are absolutely not supposed to be--synonymous, but you wouldn't know that from watching the American media. Consequently, we tend not to get good analysis about what either decision would really mean for the future of the American political system writ large.]