If the Policy Is a Crime, It Should Be Prosecuted


Under the Bush administration, it was policy to break the law. Under the Obama administration, it is policy to obey the law. But not, according to David Broder, enforce it:

If ever there were a time for President Obama to trust his instincts and stick to his guns, that time is now, when he is being pressured to change his mind about closing the books on the “torture” policies of the past.

Obama, to his credit, has ended one of the darkest chapters of American history, when certain terrorist suspects were whisked off to secret prisons and subjected to waterboarding and other forms of painful coercion in hopes of extracting information about threats to the United States.

He was right to do this. But he was just as right to declare that there should be no prosecution of those who carried out what had been the policy of the United States government. And he was right when he sent out his chief of staff, Rahm Emanuel, to declare that the same amnesty should apply to the lawyers and bureaucrats who devised and justified the Bush administration practices.

But now Obama is being lobbied by politicians and voters who want something more — the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps — or, at least, careers and reputations.

Their argument is that without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.

No, actually, the argument is that torture is illegal — therefore, the Bush administration’s authorization and use of torture broke the law. Broder omits any mention of the words “law” or “illegal” — and that is not an accident. If he did not, how could he argue that “policy” should not be criminalized — even when the policy violated domestic statutory law, the U.S. Constitution, Common Article 3 of the Geneva Conventions, and the Convention Against Torture?

Broder’s ignorance is not confined to being unaware that torture is against the law. He also is under the impression that the president of the United States decides which acts the Justice Department will investigate and prosecute:

The torture issue is much more serious [than the AIG bonus issue!], and Obama needs to take it on himself, as he started to do — not pass the buck to Attorney General Eric Holder, as he seemed to be suggesting in his later statements on the issue.

The Justice Department is an independent agency within the executive branch. It is not controlled or run by the White House (apart from the last eight years of using the unconstitutional unitary executive theory to formulate policy). It would be improper for the POTUS to decide whether, and who, to prosecute. That’s for the attorney-general — Eric Holder — to decide, not Obama. Which is why there was a bit of a kerfuffle at Justice when Rahm Emanuel told George Stephanopoulos that Pres. Obama had decided not to prosecute the Bush officials who designed the torture program, in addition to his earlier announcement that he would not prosecute the CIA agents who conducted the interrogations.

Libby gets the emphatic last word:

David Broder is an idiot and I would love to know when the WaPo is going to stop posting his specious arguments and inane projections of “what people think.” The guy takes a cab ride and thinks talking to the driver makes him the new Margaret Mead.

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