Honestly, Judge, I Did It But Let's Look Forward

By David Swanson

Now here’s a horrendously bad piece of thinking from a usually terrific website that occasionally lets loyalty to a political party trump common sense. Cynthia Boaz, who has written much better stuff, writes:

“In the wake of Sen. Patrick Leahy’s (somewhat) surprising and determined call for a Truth Commission to investigate the abuses of the Bush-Cheney administration, the Obama administration has been – to many progressives and those on the left of center – disturbingly silent. It’s safe to say that the president’s less-than-forceful position on the issue has been a source of intense criticism and skepticism from the left about the president’s sincerity regarding his claims to promote a new era of transparency and accountability in American politics.”

True enough. This is not the horrendous part yet. But let’s be a little wary of characterizing something as leftist when there has only been one poll published, which found that: 38% of Americans want criminal investigations, 24% want an independent panel, and 34% want nothing. Those 34% who want nothing done are not the mainstream, the silent majority, or the sane middle ground. Many of them, politically speaking, are certifiable lunatics. The 62% who want something done are a majority, but more of them want criminal prosecution than want what Leahy wants.

“These concerns reflect a fundamental misunderstanding of the president’s perspective as well as his role. A Truth Commission is a serious matter. In societies overcoming severe oppression or wrongdoing, Truth (or Truth and Reconciliation) Commissions can serve a critical role in healing the wounds wrought by the injustices and can promote much-needed trust, goodwill and reconciliation between the various parties. Peru, South Africa, Morocco and East Timor are just a few of the places where TRCs have helped their societies heal and have facilitated reform by acknowledging past wrongs and ensuring that the horrors of history will not be repeated.”

The successes listed above are debatable, to say the least, but what in the world do they have to do with the United States? I don’t want to put that 34% of the country on trial. I just want to see a half-dozen to a dozen top officials, including Bush and Cheney, prosecuted for their crimes. Six to twelve people, not a population, not something of such magnitude and uncommon nature that our justice system can’t handle it. Our laws require the prosecution of torture and of violating the Foreign Intelligence Surveillance Act. Bush has confessed to both. Prosecute him. That is not a large or complicated task, just one that apparently some people find so difficult to grasp that it never even occurs to them.

Investigations substituted for impeachment for two full years. A “truth and reconciliation” commission as a substitute for prosecution would be counterproductive, as argued by Jonathan Turley, Peter Dyer, David Swanson, and Bob Fertik. The Justice Department itself has argued for “state secrets” blocks on prosecutions on the grounds that commissions can substitute for enforcing laws.

“Night after night, on radio talk shows, disgruntled, self-identified progressives call in to inform the host and her audience that we (the American people) can – in fact – ‘walk and chew gum at the same time’ (a response to the argument on the part of some Obama defenders that now – in the midst of the worst economic crisis in decades – is simply not the right time to focus our energies on a task of this magnitude – that such an effort would be an irresponsible distraction). Those folks, many of whom, frankly, invoke images of villagers wielding torches and pitchforks, are sadly missing the point.”

The point? I think their point may be that if you allow one president to get away with crimes and abuses of powers, the following presidents will all assume they can do the same, and no matter how much you equate immunity for criminals with a bright future your future is going to be a living hell. The point, I would dare to suggest, involves ignoring and failing to respond to threats of terrorism, misspending funds, misleading Congress, creating false propaganda, invading Iraq in violation of Constitution, UN Charter, and HJRes 114, establishing bases and seeking to control resources in Iraq, allowing energy companies to secretly make public policy, providing immunity to mercenaries, wasting funds on war profiteers, detention without charge, rendition, torture, murder, imprisoning children, creating secret laws, using military domestically, spying without warrant, rewriting laws with signing statements, undermining preparedness for natural disasters and destroying economy through military waste, politicizing the Justice Department, ordering obstruction of justice, blocking prosecutions with bogus claims of “state secrets,” and so on and so forth until somebody gets the point. That’s why people call talk shows; they don’t want this — and worse — in the future.

While every president belongs to some political party, that is no excuse. He or she is still required to obey laws. And every attorney general is required to enforce laws, regardless of what the current president may say to the contrary. Attorneys general used to resign when such a conflict arose. Now we simply assume that a president should dictate an attorney general’s behavior, and defend a president’s choice not to prosecute crimes.

“For starters, the Obama administration has taken as its primary goal the mission of reconciliation, not retribution. Although his efforts have been thus far frustrated by a small but dogmatic segment of the Republican Party, Obama is, in the truest sense, a unifier. It is simply not the style – politically or personally – of this president to seek the same sort of ‘justice’ desired by the pitchfork-wielding villagers. In the mind of this president (I imagine, anyway) emphasis on punishing wrongdoers runs the risk – especially in this very politically contentious climate – of only promoting divisions and inflaming precisely the wrong emotions necessary for a culture of healing – namely, anger, hostility and the desire for vengeance. To wit: one caller to a progressive radio show stated (apparently oblivious to the irony) that ‘Bush should be publicly shamed.’ Surely this person – and others like him – do not seriously believe that the appropriate response to the culture of impunity we’ve been subject to for the past eight years is the subsequent creation of a culture of retribution.”

Yes, indeed, this is the horrendous part. Imagine what would happen if across the board we dismissed “justice” as a quaint notion from old Europe and ceased the prosecution of any crimes on the grounds that prosecution of crimes is a “culture of retribution.” Of course we have always had a culture of retribution and it drives much of our criminal justice system, but to throw out the deterrent value of enforcing laws because some people want retribution would mean dictatorship or anarchy. John Adams hoped for a nation of laws, not of men. As we cavalierly toss out the notion of laws as something that might actually be enforced, at least for the gravest of crimes if not for the petty ones, we evolve into a nation of men, the rule of thugs. You may have to squint very hard to start to see that, if you like the current top thug a lot and think he means well and doesn’t want to be a thug. But, even there, the signs are not all positive.

Congress will still not enforce its own subpoenas, and the new Justice Department will still not enforce them. And the new White House is encouraging Congress to compromise with a witness like Karl Rove, supporting at least partially his insane claim to “executive privilege”, explicitly admitting to be doing so in order to avoid weakening “the institution of the presidency.” To sees this all, as many do, as progress because it brings closer the day on which Rove shows his fat face on Capitol Hill and contemptuously refuses to answer pre-arranged questions on pre-screened topics is to have gone badly adrift.

“This is not to say that the president does not hold a high regard for the rule of law, or that Bush and the others should not be held accountable for their misdeeds – which in some cases, appear to rise to the level of crimes against humanity. To the contrary – and this brings me to my second point – the rule of law can only truly be applied in an environment that is as independent from political motive as possible. If Obama were to come out openly advocating the seeking of legal retribution for the crimes of Bush, Cheney, Rumsfeld and the others, it could not but be regarded (accurately, in my view) as a political maneuver. Such an event would degrade the president’s legitimacy by rendering his tactics no better than those of the people he would seek to prosecute. While the president certainly can (and should) not hinder the prosecution of his predecessor and his administration should another state (who can use the ICC) or entity (such as an organized group wishing to file a class-action suit against the previous administration for harm to the group as a whole – e.g. taxpayers organization, veterans groups, etc.), it is not the job of the president himself to seek such “justice.” Directly punishing their predecessors is something done by tyrants in authoritarian regimes, not by legitimate, democratic leaders in an open society. This is why it was the widely revered cleric Desmond Tutu, rather than the newly elected President Nelson Mandela, who led South Africa’s own Truth and Reconciliation Commission at the conclusion of Apartheid in that country.”

This is why an attorney general is not, despite the past 8.1 years experience, supposed to be a president’s servant. This is why an attorney general can appoint a truly independent prosecutor. Of course foreign countries and international bodies should enforce our laws for us if we refuse, but why in the world should that be our official policy. This sort of thinking illustrates the dangerous repercussions of burying so far into our skulls the notion that the president is an emperor that we can’t see it or question it, that we can’t contemplate the independent existence of an attorney general or any cabinet secretary, that we can’t envision Congress as the source of legislation and refer to its bills as “Obama’s stimulus” for example. When you’ve reached the point of declaring it wrong to enforce the nation’s laws but right for an outside body to do so, it’s time to start questioning what hidden assumptions have twisted your thinking out of all rationality.

“As Americans and democratic citizens, we have an obligation to acknowledge the truth about our recent shared past and its present consequences. But this can only legitimately be done by those whose job it is to hold leaders accountable in a democratic society – the people. And it can only justly be motivated by a genuine desire to adhere to the rule of law, not by a desire to seek political retaliation. Otherwise, our collective hope for evolution beyond the stains of our recent past is nothing more than a facade for our complicity in politics as usual.”

Now that’s exactly right and exactly what a lot of us are working on night and day over here: http://prosecutebushcheney.org

*****

UPDATE:

Response from Cynthia Boaz

Mr. Swanson,
>>
>> Your page came up today on my Google alerts, and I was able to read your
>> thoughts on my piece that appears on Truthout called “Obama’s Justice:
>> Reconciliation, not Retribution.”
>>
>> I think you must have misunderstood my argument. I fully support a Truth
>> Commission and I fully support holding Bush/Cheney accountable for their
>> crimes. Where I part ways with the “pitchfork-wielding” progressives I
>> mention is on the point that Obama himself should advocate for or lead
>> such an effort. It’s not merely a question of political expediency
>> (although that seems to be how my piece is being read), it’s a question
>> of
>> applying the rule of law through a legitimate process, i.e. one that is
>> as
>> independent from (partisan) politics as possible. This isn’t necessary
>> because it will protect Obama himself from retaliation by future
>> presidents (although, again, this argument is somehow- bizarrely- being
>> attributed to me), but because when justice becomes indistinguishable
>> from
>> retribution, the rule of law itself unravels rapidly. Additionally, I
>> think it’s important to acknowledge that this president has chosen to
>> focus on reconciliatory maneuvers as one means of healing the damage
>> wrought by the past eight years. It does make sense to expect him- of
>> all
>> people- to lead the charge against Bush/Cheney. But mark my words, he
>> won’t impede it (as he shouldn’t).
>>
>> I hope this helps to clarify my position.
>>
>> Cynthia

*****

I think I understood, and I disagree with it. I can post your comment
> if you want me to. I’m asking our attorney general to appoint a special
> prosecutor. I’m not asking Obama for anything. A bipartisan “truth
> commission” would involve exactly what you want to avoid.
>
> David

*****

Sure, that would be great, thanks. And while you do that, perhaps you can
also add this one, which was one of many I received in response to my
piece?

***
The email below sums up exactly the concern I express in the article. This
guy asks how I don’t cut my own throat when I look in the mirror- because
of what I wrote in the piece.

Is this what it means to be progressive? The idea/ls that this person
attributes to me- simply for saying that Obama should not lead the
prosecution of Bush/Cheney- are incredible. Aren’t we supposed to be the
ones who advocate for social justice, tolerance, acceptance of diversity
(including in ideas and values), and nonviolence? If not, then who are we?
If we can’t have a sane and humane discussion amongst even ourselves, than
what are we– progressives– doing that is so different from those we seek
to judge?

The man who wrote the email below is not someone I would feel comfortable
entrusting to run a Truth Commission or — God forbid–a trial. Would you?

And for the record, I declined payment for the article.

***

Hey Cynthia,

Just finished reading your little rant about not bringing the Crime Family
Bush to trial for their various acts of treason and sedition as to do so
might seem
political. After all since it was our corpo-rat masters and our elite that
committed those war crimes, crimes against humanity, crimes against the
Constitution, crimes against the Bill of Rights, mass murder, genocide,
concentration camps, mass kidnapping, official torture, theft of trillions
etc. we should look the other way and concentrate on putting those pot
smokers and thieves stealing a loaf of bread to feed their starving
families in the death camps instead, huh? I’m guessing you were paid the
traditional 30 pieces of silver for your rant? How do you look into the
mirror in the morning without cutting your throat or don’t you wear
makeup?

If Barry doesn’t bring these monsters to justice by giving them all 6
years down in Gitmo to be water boarded and have broom handles shoved up
their ass, (I wonder if that would be considered torture when applied to
them?) followed by a quick people’s tribunal and some very slow, painful
executions on PBS then this country is doomed.

The only thing that will bring this country together is not a truth
commission, like the cover up of 911 but capital, criminal, trials. The
hundreds of
thousands of dead, the millions of wounded and the millions of displaced
cry out for
justice. Can’t you hear their cries Cynthia, or are you deaf as well as
blind?

*****

More from Cynthia on the angry (again, you cannot dismiss a necessary peaceful and just policy because some of its supporters are angry — try proposing enforcement of the law to Bush fans and see how many of them respond with calm kindness):

Re: that email guy’s righteous anger- he is entitled to it, and if he
needs to take it out on me, I can handle it. But my larger concern is that
I have always thought progressives had the superior position not just in
ideas, but in methods. The flurry of hostility directed at me over the
past 24 hours (as well as the endless calls to hang Bush from the highest
pole) makes me start to question that view. There is so much
misunderstanding in the responses to me- they rise to the level of
surreal. Regardless of how clearly or frequently I repeat myself, some
people continue to read what I’ve written as my saying that Bush/Cheney
should be “let go”, that I think political expediency is more important
than either law or morality, that I’m a strict pacifist advocating for
appeasement, and/or that I’ve been locked in my academic tower with “my
head down” for the past 8 years (oh were that last one actually true, I’d
have several books out and tenure by now). Any of those myths can be
easily disregarded with a simple Google search of my work, yet they are
holding on like a bad cold.

I guess another concern for me comes back to this. When this level of
anger rules the decision, it is almost inevitable that some form of
violence (which is almost always inconsistent with justice) is the result.
When all is said and done, I want to be able to say that we dispensed with
Bush/Cheney through due process, and in a manner befitting our highest
democratic ideals and the rule of law. “Justice” administered through the
lens of anger and hatred is not real justice, it is retribution. And
retribution is consistent neither with democracy nor the type of
reconciliation that Obama seeks and of which his victory symbolizes
(reconciliation between people and *their* government, not- again, as my
argument is being misread- between Bush/Cheney and us).