Prosecute the Bush Administration

At Jewcy, Howard Schweber is trying to make the case against prosecuting the Bush administration for war crimes. His bad argument can be divided into two essential ideas:
1. President Bush, Vice-President Cheney, and other administrative officials did not intend to violate the law, therefore they should not be considered culpable if they did, in fact, violate the law.

2. Partisan politics are threatening to consume our national dialogue, and an ugly trial unleashed by Democrats on Republicans is the last thing we need.
Corollary to 2: the peaceful transference of power is itself threatened when Presidents are led to believe they might be prosecuted upon leaving office.

Although #2 appears reasonable, it is actually a much more dangerous line of thinking than #1. But to go in order...

How shall we judge the intent of Bush administration officials? Mr. Schweber never answers (or even asks) that question, yet half his argument rests on the assumption that the past administration believed itself to be operating within the legal bounds of the constitution.

At the center of the question are the John Yoo memos, which originally authorized 'coercive interrogation' and the suspension of habeas corpus for terror suspects. Since being revealed to the public, they have been condemned as faulty by nearly every legal expert who has seen them -- perhaps most infamously by Yoo's own alma mater, Yale Law, which assisted one of the victims of the memos in suing their author. Yet there was one distinct body of legal scholars who found no fault with Yoo's reasoning. That would be the Bush administration, led in this case by John Ashcroft.

How do we measure intent to follow the law? If we cannot rely on the public statements of the White House, and we also cannot rely on its ability to correctly parse the Constitution, what do we have left?

Nothing. There is no way to measure intent, nor should there be. More importantly, White House officials know this. Anyone who thinks John Yoo, a Yale grad, a Berkeley law professor, didn't know he was taking his career in his hands when he penned those memos ought to sit in on a class at Yale, and decide for themselves how stupid somebody can be to make it through. Yoo knew what he was doing, just as Ashcroft and Cheney (and perhaps even Bush) knew. Perhaps they believed it was for the good of the country -- perhaps not. That's a separate argument to be made. But given the number of instances we now know of wherein the administration directly lied to the country in order to advance a set of foreign policy objectives (speaking of which, please do read the above link), can Mr. Schweber credibly make the argument that somewhere, deep down in the core of this mess, an honest attempt was being made to follow the law? I don't think so.

At best, Mr. Schweber can fall back to the claim that no amount of inference can prove that the administration new it was operating outside of the law (at least based on the documents available to us today). Which proves the point. Intent cannot be used as a measure of legality. This is not a criminal prosecution of a single individual. It is by nature the investigation of a conspiracy, and that precludes any notion of intent.

The irony of Mr. Schweber's other argument, that Washington is too obsessed with partisan politics, is that such an obsession seems fully to have possessed Schweber himself. How else could he stand to write off the potential crimes of this administration purely for the sake of bipartisan camaraderie?

Let's be clear: putting the former White House on trial would certainly polarize Washington, and maybe the country. But since when was nasty debate more frightening than illegal wiretapping, imprisonment, and torture? For how long will we pretend that, because none of us was personally imprisoned, it's therefore somehow acceptable that other American citizens were? There are certainly Americans out there who truly believe that every inmate at Guantanamo, or any CIA prison, is guilty. But that should only encourage a reasonably informed individual like Mr. Schweber to stand up in defense of the truth. There are bigger things at stake than a descent into bitter campaigning.

Nowhere is Mr. Schweber's failure to see the forest for the trees more clear than in his suggestion that the peaceful transference of power would be threatened by a fair trial. Can anyone even follow the argument anymore? Somehow, it's not the overwhelming concentration of illegal power in the hands of the executive that threatens peaceful transference. It's the attempt to put a stop to that process. This is so backward it's almost painful.

Look, no one is suggesting that everyone from Bush on down be thrown into a secret prison, without trial, where Barack Obama could daily piss on the face of the former staffer of his choice (though God knows the precedent has all but been set). We are asking for a fair trial. If the President, Vice-President et al have nothing to hide -- if they acted within the law -- then nothing will come of such a trial. Would it be a partisan affair? Yes, that can't be helped. But it would be lawful, and no future executive would have anything to fear from such a process provided that he or she acted within the law.

And isn't that precisely the point? The message that Bush-Cheney sends, right now, is that with enough bureaucratic shuffling, and enough burnable lackeys, the President can get away with anything. If all you have to do is survive for eight years, even a fool could find a way to make use of the confusing rules surrounding the White House to protect himself.

That message needs to change. Not because Bush and Cheney deserve it (though they do), but to protect the office from future exploitation. If President Obama is serious about realigning the executive branch with the Constitution, he needs to pursue the Bush administration with the full force of the law.