Stoopid Stuff

The Limits of Executive Power

Amid the revelations of a particularly systematic American kind of barbarity and depravity we find in the DoJ Office of Legal Counsel justifications for torturing other human beings, perhaps a larger question needs to be discussed, and possibly even resolved.

Our President has made the unequivocal statement that the front line people, the CIA field agents and their military partners who actually committed the war crimes described in these appalling documents will not be prosecuted nor held to account in any way as long as they were acting in good faith based upon assurances from the Department of Justice that these acts were legal. Now, this may actually be good policy - at least one could make the case that in this type of situation you should prosecute the architects of the policy, not the front line soldiers - but let's set this aside for now. You could also shake your head and ask how anyone involved could have genuinely believed "in good faith" that these ancient, barbaric acts of torture were suddenly and magically legal based on a few documents produced under obvious political pressure, but that's a conversation we can have later.

Here's the BIG question. Under our system of government, can the elected executive simply decide, on his own and based on no law nor constitutional provision, what criminals are prosecuted and what criminals are not? From what provision does this authority derive? Under what statute can the President issue this edict? It doesn't seem that he's granting amnesty - it seems he would have to say what individuals are being granted executive clemency - and typically he would at least wait until after the criminal prosecution has run it's course (see Libby, I. Lewis) to issue the order of clemency.

But immunity? Can he do that? Certainly the DoJ could offer various forms of conditional immunity in order to get the testimony they needed to convict other, more heinous perpetrators of these crimes, but that's not what we have here. This is a sweeping statement that it is the policy of the United States of America to refuse to prosecute our own torturers and war criminals. One wonders how this mechanism might even work. If an individual Federal or State Prosecutor undertook to investigate and prosecute these horrific crimes of which so much detail is now known, would the President threaten those Prosecutors with prosecution for violating his policy? How far have we drifted from the rule of law when not only is law consistently subverted by policy and political considerations, but our democratically elected President can issue monarchical edicts unsupported by statute or constitution.

For that matter, what would the official reaction of the United States, not to mention the United Nations be if Hu Jintao issued this very same edict. Would the world simply shrug in acceptance that the Chinese torturers acted "in good faith"? Or would the world issue broad statements of denunciation, decrying the authoritarian Chinese government's unwillingness to abide by the rule of law?

It just seems so simple to me. There is plenty of evidence of a crime. Under International Treaty obligations, if not simple integrity and commitment to the rule of law, the United States is required to investigate these allegations. And if there is enough evidence, which there most certainly is, to prosecute them. Now, all hyperbole aside, all that says is the people will have their day in court. If it is the case that the OLC memos authorizing the specific inhumane acts exonerate anyone who followed their guidance in good faith, than it seems obvious that the court would find them not guilty. At least there would have been some process, and the rule of law would be upheld.

Instead, we have a President who has assumed for himself the authority to determine which lawbreakers are tried and which shall go scot-free. This is an unprecedented overreach - it's hard to say that any power the Bush/Cheney cabal claimed for the White House was any more blatantly and illegally arbitrary than this one. President Obama needs to shrug his shoulders and tell the people of the United States and the world that it is not his role, that courts and judges make these decisions, and that he, along with the people, will live with the findings of that court. It is the American way. This is something much less...

posted by mikey @ 10:26 AM