The very complicated issue of political independence at the DOJ
After the release of more DOJ torture memos last week, President Obama said that he would not prosecute the CIA interrogators who carried out the Bush administration's orders. Keith Olbermann and other commentators interpreted Obama's statement broadly, taking it to mean that there would be no prosecutions related to the torture issue whatsoever. My initial take on it was that this interpretation of the President's comments was a little too broad, although I understood the point Olbermann et. al. were making - that prosecutions of the federal employees who actually committed the torture would probably be the most straightforward way to bring their superiors (who created/approved the interrogation policies) into court.
Today, Obama provided a clarification on this issue:
"For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it's appropriate for them to be prosecuted.
With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that. I think that there are a host of very complicated issues involved there." [Marc Ambinder]
So he wasn't saying that prosecutions are off the table. That said, there are problems with the AG being "the decider" (to use a Bushism). One of the main reasons Obama has been hesitant about investigations or prosecutions of Bush officials is that he wants to avoid the appearance of partisanship. And while Attorney General Holder is serious about restoring the DOJ's political independence, he remains one of Obama's most visible appointments, and one of the most visible examples of the "Change" Obama promised. If Holder calls for prosecutions of members of the administration whose record Obama won by running against, it could create the (wholly unfair) perception that he is Obama's Alberto Gonzales.
What's especially frustrating about the situation is that the Bush DOJ's lack of political independence probably makes it even harder for the Obama DOJ to undertake controversial prosecutions without appearing unduly politicized. After eight years of the DOJ being run by yes men, some Americans might just assume that the attorney general is supposed to base prosecutorial decisions on the President's political agenda - and would not draw any distinction between Holder and Obama.
That's at least one of the "very complicated issues" Obama faces when it comes to torture prosecutions. Another issue may be the fear that prosecuting members of a previous administration over their policies could set a dangerous precedent, inviting payback in the form of prosecutions by a subsequent Republican administration. It isn't hard to imagine that line of argument: "they weren't satisfied with beating us in the 2008 election, they had to rub it in by prosecuting us over the policies they didn't agree with. If they can, why can't we?" I'm not suggesting that the Obama administration will do anything as controversial or illegal as the Bush administration's torture program, but I have a feeling that wouldn't stop the GOP from trying (see Clinton impeachment).
Increasingly, some kind of congressional investigation or 9/11 Commission-style blue-ribbon panel investigation looks like a better option for the Obama administration, and the President sounded more open to the idea today than he has before, saying that any congressional investigation would need to be carried out in a "bipartisan fashion." [Bloomberg] The only problem with that is that the GOP leadership hasn't shown much interest in throwing the Bush administration under the bus, aside from saying that Bush strayed from the party's fiscal conservatism.
Which surprises me, to be honest. As it stands now, everyone my age (31) and younger will permanently associate the GOP with Bush, Cheney, Rumsfeld, et. al. And the GOP's core strategy - repeating the same old platitudes about Reagan - is not going to make the association between their party and the Bush administration go away. Reagan was out of office by the time I was twelve, and moreover, most of his big ideas have been proven wrong in the twenty years since then.
If the Republican leadership has any interest in competing nationally again, the smartest thing they could do right now would be to take an active role in a bipartisan investigation of pre-Iraq intelligence and torture - making it clear that those were the Bush administration's policies, not theirs, and that we are wrong for lumping them in with people who would lie about something as serious as the rationales for starting a war our friends and classmates would fight, or would put the United States on the "countries that torture" list alongside serial human rights violators like China and Syria. Until the GOP throws the Bush administration under the bus, Bush will still be in the driver's seat, with Cheney riding shotgun.
Today, Obama provided a clarification on this issue:
"For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it's appropriate for them to be prosecuted.
With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that. I think that there are a host of very complicated issues involved there." [Marc Ambinder]
So he wasn't saying that prosecutions are off the table. That said, there are problems with the AG being "the decider" (to use a Bushism). One of the main reasons Obama has been hesitant about investigations or prosecutions of Bush officials is that he wants to avoid the appearance of partisanship. And while Attorney General Holder is serious about restoring the DOJ's political independence, he remains one of Obama's most visible appointments, and one of the most visible examples of the "Change" Obama promised. If Holder calls for prosecutions of members of the administration whose record Obama won by running against, it could create the (wholly unfair) perception that he is Obama's Alberto Gonzales.
What's especially frustrating about the situation is that the Bush DOJ's lack of political independence probably makes it even harder for the Obama DOJ to undertake controversial prosecutions without appearing unduly politicized. After eight years of the DOJ being run by yes men, some Americans might just assume that the attorney general is supposed to base prosecutorial decisions on the President's political agenda - and would not draw any distinction between Holder and Obama.
That's at least one of the "very complicated issues" Obama faces when it comes to torture prosecutions. Another issue may be the fear that prosecuting members of a previous administration over their policies could set a dangerous precedent, inviting payback in the form of prosecutions by a subsequent Republican administration. It isn't hard to imagine that line of argument: "they weren't satisfied with beating us in the 2008 election, they had to rub it in by prosecuting us over the policies they didn't agree with. If they can, why can't we?" I'm not suggesting that the Obama administration will do anything as controversial or illegal as the Bush administration's torture program, but I have a feeling that wouldn't stop the GOP from trying (see Clinton impeachment).
Increasingly, some kind of congressional investigation or 9/11 Commission-style blue-ribbon panel investigation looks like a better option for the Obama administration, and the President sounded more open to the idea today than he has before, saying that any congressional investigation would need to be carried out in a "bipartisan fashion." [Bloomberg] The only problem with that is that the GOP leadership hasn't shown much interest in throwing the Bush administration under the bus, aside from saying that Bush strayed from the party's fiscal conservatism.
Which surprises me, to be honest. As it stands now, everyone my age (31) and younger will permanently associate the GOP with Bush, Cheney, Rumsfeld, et. al. And the GOP's core strategy - repeating the same old platitudes about Reagan - is not going to make the association between their party and the Bush administration go away. Reagan was out of office by the time I was twelve, and moreover, most of his big ideas have been proven wrong in the twenty years since then.
If the Republican leadership has any interest in competing nationally again, the smartest thing they could do right now would be to take an active role in a bipartisan investigation of pre-Iraq intelligence and torture - making it clear that those were the Bush administration's policies, not theirs, and that we are wrong for lumping them in with people who would lie about something as serious as the rationales for starting a war our friends and classmates would fight, or would put the United States on the "countries that torture" list alongside serial human rights violators like China and Syria. Until the GOP throws the Bush administration under the bus, Bush will still be in the driver's seat, with Cheney riding shotgun.
posted at 3:06:00 PM | permalink
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