Dershowitz Says Leave Poor Bush and Cheney Alone

By David Swanson

Here’s an interesting self-defense with a gloss of principle and detatchment.

Indictments Are Not The Best Revenge
By ALAN M. DERSHOWITZ, Wall Street Journal
September 12, 2008

Dershowitz or whoever wrote the headline begins with the pretense that wanting to deter future crimes is not the motivation of those of us pushing for the prosecution of Bush and Cheney, that we simply must be as primitive and barbaric as the author and be seeking revenge — partisan revenge to be precise, even though those pushing for indictment of Bush were not fans of Clinton either and in some cases pushed for his indictment as well.

I don’t agree with a lot of the Bush administration’s policies in the war on terror,

You agree that there is such a thing, and that’s enough.

and I plan to vote for Barack Obama and Joe Biden in November.

What is the relevance of that? Bush and Cheney are not candidates in this election.

But during a recent campaign rally Mr. Biden gave a wrong-headed, if well-intentioned, answer when asked whether he would “pursue the violations that have been made against our Constitution by the present administration?” This is how he responded: “We will not be stopped from pursuing any criminal offense that’s occurred.”

Oh, relax! If he’s pretending as you do to be unaware that criminal offenses have occurred then you have very little to worry about and can safely recommend inaction and count on them to “take your advice.” Biden, in fact, swore on a stack of bibles on Fox News the very next day that he didn’t mean anything by it and had no plans to prosecute anybody.

After praising Democratically controlled congressional committees for investigating these matters — “collecting data, subpoenaing records . . . building a file” — Mr. Biden continued: “If there has been a basis upon which you can pursue someone for a criminal violation, they will be pursued -not out of vengeance, not out of retribution, [but] out of the need to preserve the notion that no one, no attorney general, no president — no one is above the law.”

If he had meant it that would have been exactly right — or half right. Exactly right would have been to demand immediate impeachment and prosecution and drop the pretense that some sort of doubt can exist whether crimes have been committed.

Mr. Biden’s comments echoed what Mr. Obama had said in April when he pledged that, if elected, he would have his attorney general investigate the actions of his predecessor to distinguish between possible “genuine crimes” and “really bad policies.” Mr. Obama moderated his statement by stating that he would not want his first term “consumed by what was perceived on the part of Republicans as a partisan witch hunt,” because his administration would have many other problems “we’ve got to solve.”

So, you are safe, or as safe as anyone can be in a republic shifting to an empire.

No reasonable person can disagree with the important principle underlying these statements by the democratic nominees that “no one is above the law.” But there is a countervailing principle at play here that is equally important — namely that the results of an election should not determine who is to be prosecuted. These principles inevitably clash when the winners of a presidential election investigate and prosecute the losers, even if the winners honestly believe that the losers committed “genuine crimes” rather than having pursued merely “bad policies.”

It’s not the results of an election that could determine who is prosecuted. It’s the reslts of an election that could — in a dreamy optimistic fantasy anyway — determine whether laws are enforced. The Justice Department is right now a branch of a political party, hiring and firing on that basis, and – yes – prosecuting on that basis. Any future president must undo that, and must prosecute openly criminal predecessors, regardless of party. But rather than asking McCain to make that commitment, you choose to ask Obama NOT to. Which side of the law are you on? I repeat: Bush is not a candidate this year. He cannot win or lose. Your acceptance of the idea that party loyalty must supercede all else, including both the rule of law and the significance of elections, that it must go completely unquestioned, just like your fantasies about the utility of torture, is the root of the difficulty here.

Under our particular system of government, it is nearly impossible for a winning administration to prosecute those it defeated without it being perceived, quite understandably, as “a partisan witch hunt.” This is because the attorney general of the United States, the official who a President Obama would ask to review his predecessors’ actions, plays two roles simultaneously — that of political adviser to the president, and that of chief law enforcement officer of the United States.

The attorney general need not, should not, must not play those roles. An attorney general was forced out of office last summer for having done so, and his successor would have been too had the Congress not realized that it was making itself look foolish by replacing and then punishing the subordinates of a dictator to whom it had granted immunity. But have we heard you advocate impeachment? Have we even heard you urge Republicans to begin a bipartisan impeachment effort? Of course not.

In many other countries, these conflicting roles are performed by different officials. For example, in England, the minister of justice is a political adviser to the prime minister, but he plays no role in investigating and prosecuting crimes. That sensitive job is left to the director of public prosecution, who is nonpartisan. The same is true in Israel, where the minister of justice is a political adviser to the prime minister and the attorney general is the nonpartisan chief law enforcement official. (The attorney general of Israel will soon decide whether to prosecute Prime Minister Ehud Olmert on alleged corruption charges.)

Our attorney general’s function is to enforce the law. In fact that is our president’s function. If either of them does not, they must be impeached by the people’s representatives. You’re blaming a part of the system that isn’t broken and which fixing wouldn’t guarantee any improvement. If you believe parties have too much power, restrict their funding, open up debates and ballot access, provide free air time to all candidates. If factions have become the threat the founders warned of, then deal with it. Don’t complain that the attorney general is appointed by a partisan. Your op-ed was appointed by a partisan too.

It is because our system allocates these two incompatible roles to a single public official — the attorney general — that we have, in the past, seen the need to appoint “independent counsel” or “special prosecutors” to investigate political crimes. In England, Israel and other nations that divide these responsibilities, there is no need for these troublesome contrivances, because the normal prosecutors are already “independent” of partisan pressures.

Congress could do that now if it had the nerve and the decency. Obama or McCain could do it if they had the nerve and the decency. You could advocate for it now if you had …

We simply cannot trust a politically appointed and partisan attorney general of either party to investigate his political predecessors in a manner that is both fair in fact and in appearance. Nor would the appointment of “independent” or “special” counsel solve the structural problems inherent in our system. These ersatz functionaries bring problems of their own to the criminal justice process, as evidenced by the questionable investigations that targeted President Bill Clinton, vice presidential chief-of-staff Lewis “Scooter” Libby (full disclosure: I consulted with both of them, without fee, about their cases) and others over the past decades.

Newsflash: The investigation didn’t target Libby. Libby obstructed the investigation. And Bush commuted his sentence. Both James Madison and George Mason believed we needed impeachment for just such an abuse of the pardon power. But we ain’t seen nothing yet in that regard. Wait for January.

The real question is whether investigating one’s political opponents poses too great a risk of criminalizing policy differences — especially when these differences are highly emotional and contentious, as they are with regard to Iraq, terrorism and the like. The fear of being criminally prosecuted by one’s political adversaries has a chilling effect on creative policy making and implementation.

If you were to prosecute for, say, open violation of FISA, you’d be addressing a policy, but an illegal one. And no magical force would compel you to also prosecute a legal policy, and if you did the innocent party would, we can expect, be acquitted.

Noam Chomsky — the MIT professor of linguistics who has become a sort of guru to hard-left America bashers — typically overstated his point when he asserted that “if the Nuremberg laws were applied, then every postwar American president would have been hanged.” Among the crimes committed by American presidents, according to Mr. Chomsky, were the counterinsurgency campaign in Greece (Truman), the overthrow of the Guatemala’s government (Eisenhower), the Bay of Pigs (Kennedy), the Vietnam War (Johnson), the invasion of Cambodia (Nixon), the attack against East Timor (Ford), the increase in Indonesian atrocities (Carter), support for the Israeli invasion of Lebanon (Reagan) and on and on to the current administration.

So we’ve developed an established pardon of allowing ever worsening criminal activity, and your argument for allowing it to continue and grow even more extreme and blatant is … just that, the pattern?

For those hard-left Democrats who have been pressing their candidates for a promise to prosecute, the list of crimes allegedly committed by the Bush-Cheney administration grows longer and thinner every day.

This list?

A politically appointed prosecutor, imbued with partisan zeal, could find technical violations of the criminal law in some of the envelope-pushing policies of virtually every administration. One does not have to be as ruthless as Laventri Beria — who infamously assured his boss Joseph Stalin “show me the man and I’ll find you the crime” — to come up with “a basis upon which you can pursue someone for a criminal violation” (as Mr. Biden put it).

So, you agree with Chomsky. So do I. But the important point you’re avoiding here is that Bush and Cheney have outdone all of their predecessors combined, and you are well aware of it, having publicly cheered for some of it.

Even the most well-intentioned and honorable partisans may see “genuine crimes” on the part of their political adversaries, where a more objective prosecutor would see nothing more than “really bad policies.” Most “political” crimes are matters of degree, hinging on “mens rea,” the mental state of the alleged perpetrator. The criminal law is a blunderbuss, not a scalpel, and in the hands of a partisan prosecutor it is too blunt an instrument to distinguish “genuine crimes” from “really bad policies” on the part of defeated political enemies.

You proposed the partisan witch hunt as the only possible prosecution. It isn’t. And were it, avoiding it would certainly NOT be just as important as upholding the rule of law.

Our constitutional system of checks and balances provides numerous mechanisms for dealing with “really bad policies,” even those that may be seen by some as bordering on criminal. Congress may investigate, expose and legislate, but it has no authority to prosecute. In extreme cases, impeachment is available. Prosecution should be reserved for the extremely rare situation where the criminal act and mens rea are so apparent to everyone that no reasonable person would suspect partisanship. The best remedy in other cases is to campaign against and defeat those who supported the bad policies.

Well, let’s see, a majority of Americans say Bush lied us into an unnecessary aggressive war. How’s that work for you?

That is among the important reasons why I will vote for the Obama-Biden ticket, and that is also why I will try to persuade them, if they win, not to conduct criminal investigations of their defeated opponents.

Nobody has proposed prosecuting McCain or Palin.

Mr. Dershowitz, a professor of law at Harvard, is the author, most recently, of “The Case Against Israel’s Enemies: Exposing Jimmy Carter and Others Who Stand in the Way of Peace” out this month by Wiley.

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