Bauer versus Brandeis

Barack Obama, in his appearance yesterday on ABC News, spent much of his time focusing on the economy. But I was most struck by an exchange that occurred late in the interview, when host George Stephanopoulos brought up the sensitive issue of criminal accountability in high places.

Stephanopoulos, quoting a question posed by a citizen on Obama’s website, asked whether Obama is prepared to appoint a special prosecutor “to independently investigate the greatest crimes of the Bush administration, including torture…”

This question has been kicking around for a long time, justifiably so. There is abundant evidence that the Bush regime, in its embrace of abusive interrogation techniques, trashed the rule of law. This is not a “liberal” perspective. Way back in May 2004, the deputy commanding general of the Third Army, Lt. Gen. Antonio Taguba, investigated the incidents at the Abu Ghraib prison; in a 53-page document, he cited “egregious acts and grave breaches of international law,” and concluded with this whopper:

“There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

And who ordered the use of torture - specifically, the illegal techniques devised by communist Chinese agents during the Korean war? A new bipartisan report by the Senate Armed Services Committee, released last month, concludes that certain high-ranking Bush officials – including former Pentagon chief Donald Rumsfeld, his legal counsel William Haynes, and potentially vice presidential legal counsel David Addington – took various actions that “led directly” to the use of interrogation methods that violated federal and international law, starting with the Geneva Conventions.

Indeed, behind the scenes, some of the most vociferous critics of the Bush regime were the military’s legal advisers. As evidenced by their own memos, they repeatedly protested the techniques such as waterboarding on legal and moral grounds, and, in some cases, they condemned the abuses on pragmatic grounds. Alberto Mora, a former Navy general counsel, told the Armed Services Committee that our treatment of the prisoners had worked mostly as a recruiting tool for the enemy, thus contributing to the number of U.S combat deaths in Iraq.

Given this track record, it’s no surprise that Eric Holder, the Obama team’s nominee for attorney general, has offered some tough talk about the need to hold the Bush regime accountable for its actions. A few months ago, prior to being tapped for the AG job, Holder said that “our government…authorized the use of procedures that violate both international law and the United States Constitution. We owe the American people a reckoning.”

That’s what Stephanopoulos basically asked Obama: Will we see such a reckoning? In the interests of justice, and in the interests of deterring errant behavior in the future, will the Obama administration name a special prosecutor who would hold Bush bigwigs accountable, and thus demonstrate that nobody is above the law?

The answer, apparently, is no.

Obama, in response: “We’re still evaluating how we’re going to approach the whole issue…And obviously we’re going to be looking at past practices, and 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. And part of my job is to make sure that, for example, the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering."

More Obama: “My instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn’t mean that if somebody has blatantly broken the law that they are above the law. But my orientation’s going to be to move forward…My general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed (to) looking at what we got wrong in the past.”

It doesn’t take a genius to read between those lines. As I have mentioned repeatedly, Obama is a savvy politician, and he has clearly decided that any attempts to hold the Bush team criminally accountable for its behavior would clash with his own political and governing priorities. He has calculated that plumbing the past would risk triggering new rounds of partisan warfare – thereby undercutting his goal of nurturing a post-partisan, problem-solving era in Washington. And given the policy challenges on the horizon – economy, energy, health care, and so much more – Obama clearly sees a special prosecutor as a luxury he can ill afford.

Perhaps that’s the best calculation, given our current dire circumstances. Cleanse the past, focus on the future. That’s what Gerald Ford did in 1974, when he pardoned Nixon; his goal was to preemptively end “our long national nightmare,” and get Americans to look forward (which we generally prefer to do anyway, given our penchant for historical amnesia). What Obama suggested, in his ABC News interview, was that we would symbolically rebuke the Bush team “moving forward,” by returning to the interrogation and prison-handling practices that conform to international law.

But, as a number of despairing legal experts have pointed out, there is a moral price to be paid for letting the Bush team off the hook. Jonathan Turley, the noted law professor at George Washington University, framed the issue in several remarks last month: “It’s the indictment of all of us if we walk away from a clear war crime…It is equally immoral to stand silent in the face of a war crime and do nothing.” And Dahlia Lithwick, a legal scholar and commentator at Slate, argued the other day: “We don’t protest that ‘it’s all behind us now’ when a bank robber is brought to trial.”

Obama has probably judged the politics of the situation correctly. The average citizen is far more focused on keeping a job than going after Bush's people, and if the latter is assigned a low lower priority, so be it. Besides, on the Fox network, Jack Bauer is back on 24, and no doubt he will soon be re-instructing the masses on the efficacy of extreme interrogation. After all, in our contemporary culture, Jack Bauer is far more famous than Louis Brandeis, the legendary Supreme Court justice who once warned that “if the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy."