Thursday, December 18, 2008

Accountability to the Rule of Law is not a Criminalization of Political Differences

Posted at the "Arena" section of, is a question that relates to what I, and many, have been writing about recently. For those who are not familiar with this section of Politico's website, it is a section that is described as their "daily debate with policy makers and opinion shapers." The question posted states: "Should the DOJ consider prosecuting Bush administration officials for detainee abuse as the NYT and others have urged?"

There are some short responses by a wide-range of individuals and some of the responses continue to miss the mark on this issue. The first response is from Steven Calabresi, a Professor of Law at Northwestern University, and he acknowledges that if war crimes were committed, (and he doesn't believe that any were) then we should prosecute those responsible. He then goes on to qualify his response by taking a shot at both the New York Times and those who hold a different political ideology than the Bush Administration:

"The effort by the New York Times and others to criminalize politics by
casually urging the criminal prosecution of Bush Administration officials the
Times disagreed with is however reprehensible. It is a step back toward the era
when we guillotined our political opponents instead of voting them out of

This is much more than, as Calabresi suggests, a criminalization of politics. As has been discussed in my previous entries, we are talking about decisions that have directly led to the torture, and in some cases, the deaths of detainees in U.S. custody. This is about an Administration who has violated the Geneva Conventions, shut out legal opinion that did not coincide with the tactics they wanted to implement, and lied after the story broke about these torture programs. We are not talking about the criminalization of politics, we are talking about a fundamental disregard and disrespect for the rule of law.

There are more responses to this question from Steve Steckler of the Infrastructure Management Group and from Maurice Carroll, Director of the Quinnipiac University Polling Institute. Steckler states:

"Such prosecutions, warranted or not (and on balance, I don't believe they are),
would distract and diminish the new Administration in a manner similar to what
would have occurred had the same Bushhaters been successful in getting the
Democratic Congress to begin impeachment proceedings."
Again, labeling those who are concerned with crimes committed by the current Administration as "Bushhaters" frames this issue within a political context that implies that those who are calling for an investigation into crimes committed, are merely political opponents of the President. It matters not if those calling for an investigation or prosecution of the officials who have committed crimes are political opponents, what matters is that there are serious laws that have been broken. My favorite response to this question however, comes from Maurice Carroll. Here is his response in full:

"Is it a good idea for a new administration to look for prosecutable
crimes by the old administration? Even if their opinion is that there WERE
crimes? By and large, the answer is no. Even if the true believers (and the
true-believer editorial writers) are pestering the Obama administration to do
it. One of the strengths of the American political system is that it's not a
blood sport. We disagree without looking to put the other guys in jail. Which is
a longish way of saying: There'll be a new slate. Shouldn't we wipe the old
slate clean?"

This argument has been echoed lately in discussions surrounding the Bush Administration and has been voiced by many. The problem with this is line of thought is that it provides for zero accountability even if very real crimes have been committed. Carroll states that it isn't a good idea for a new administration to look into prosecutable crimes, EVEN IF they believe that real crimes were committed. Instead, Carroll favors "wiping the old slate clean" by excusing any crimes and moving on with a "new slate".

Political accountability is one thing. If elected officials do not represent their constitutes and fail to bring the people what was promised then voting these officials out of office is a type of political accountability, but we are not simply talking about political accountability in this instance. We are talking about actual crimes that have taken place and holding criminals accountable by the legal standards that every day citizens are held to. We should not confuse accountability to the rule of law, with political accountability.

It makes little sense to operate as a nation of laws and on the notion that no one is above the law, if the country's response to law breaking by elected officials is to ignore it to preserve so-called "political unity". Mr. Carroll states that this is one of the great strengths of the American political system yet in fact, it is one of the biggest weaknesses of the American political system. This is a system where we see soldiers, who implemented policies of torture punished by a justice system that ignores those who put the policy in place. This is not justice, nor is it simply a difference in political belief systems. What this system is, is a group of elite politicians who feel they are above the law and can act without being held to account for even the most serious crimes that we have seen in recent times. Should the DOJ consider prosecuting Bush Administration officials for detainee abuse? Most certainly. It is necessary in order to hold lawbreakers to account for their crimes and recommit this country to the basic principles of the rule of law.

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