The Political Problem of Prosecution: Why President Obama is Thinking About Whitewater and Paula Jones

The Bush administration memos detailing the dirty secrets of the GWOT continue to make an impact on the blogosphere. On Liberal Values, Ron Chusid has written several posts on the topic of torture over the past week, and over on The Anonymous Liberal, the eponymous author has made it his chief topic. Ron has made note of the fact that President Obama did leave the door open for prosecution of those officials responsible for setting policy on torture, despite his rather broad promise of immunity to the interrogators who actually committed the human rights abuses. He has also made strong posts about the moral failure and specific motives involved in torture. It is the latter that I find particularly cogent: torture's true effectiveness is not in eliciting unknown information from unwilling informants, but rather coercing specific, desired responses from unwilling victims. The classic purpose of torture throughout history has been to force a confession, real or spurious. The actual value of torture as an interrogation tool is marginal at best.

The Anonymous Liberal, as befits a lawyer, spends more time on the legal ramifications of the torture disclosures. Indeed, the discussion of whether or not President Obama was 'right' to promise broad immunity to the torturers under the idea that they acted in 'good faith' was the point of his original post (he claims that it was) and has dominated the discussion of both the original post and subsequent posts. Before going on to my real point, I feel I have to stop and share my views on the 'good faith' question.

The argument, as the AL advances it, is that if the statements of the OLC that the techniques being used in interrogations were not torture and therefore legal than it follows that the interrogators did not break the law because they believed, in good faith, that they were not breaking the law. Naturally, this is a somewhat controversial argument among liberals. Some accept it while others disagree and some of them have done so quite aggressively. The precedent advanced most often is the Nuremburg tribunals, where subordinate Nazis who were 'just following orders' were convicted and executed... sometimes while the higher ranking Nazis who gave the orders being followed went free. Because of the political aspects of Nuremburg, I do not agree with its use in this scenario. We are not talking about a defeated enemy being prosecuted for war crimes for the purpose of a political point. We are talking about policing our own ranks and making sure that our own people live up to our own values.

I reject the 'good faith' argument all the same. The OLC is a branch of the DOJ, certainly, and its job is to provide legal counsel to the agencies of the executive branch of the government. However, expert opinion that a specific action is legal is not a shield from criminal prosecution. If the opinion is incorrect or if the counsel is guilty of malpractice, the suspect is still vulnerable to prosecution and is still guilty if the evidence prove guilt beyond a reasonable doubt. The fact that government lawyers may be guilty of a slough of criminal charges for politicizing their legal opinions, authorizing torture, and covering the backs of agencies engaged in criminal activities or that they may be liable for malpractice as a result of said counsel does not and should not provide the torturers immunity from prosecution. The only thing that can provide such immunity is sworn testimony against the superiors who ordered the torture. Anything less than that is an unacceptable reason for such immunity.

As he is an intelligent man and, as far as I can tell, a moral man, I am inclined to think that President Barack Obama knows this. I do not believe 'good faith' is the genuine reason for the current administration's reluctance to pursue a slough of criminal charges against government agents and Bush administration officials. Rather, I believe that President Obama is thinking about the Clinton Presidency.

During the Clinton administration, the GOP pursued a bevy of politically motivated investigations and charges into the conduct of President Bill Clinton. These ranged from a real estate scam of which the Clintons were victims (Whitewater), to the kind of foolish but genuine mistakes any new administration unfamiliar with Washington bureaucracy might make (the so called 'Travelgate' scandal), to the more genuinely questionable record of President Clinton's personal life before and during his presidency. The Republicans threw everything they had up against the wall to see what would stick, leading up to a legally questionable political waiver of sovereign immunity to allow a sitting president to be forced to give sworn testimony in a civil suit filed against him. Amusingly, this entirely uncomfortable precedent is being completely ignored by Republicans now touting the power of executive privelege to protect Bush administration officials.

The Republicans suffered a political cost for politically motivated investigations and prosecutions of Clinton administration officials. As the momentum to impeachment gained ground, it completely sucked the life out of the remainder of the Republican agenda. After the impeachment failed so completely, President Clinton was the clear winner and enjoyed a clear advantage over the GOP for the remainder of his administration.

Investigations and prosecutions of Bush officials would have the same effect on the Obama administration, and President Obama has too heavy a policy agenda on the table to want to see anything derail it. To his pragmatic mind it is clear that economic recovery, health care, and education must all take priority over justice that would be perceived by many on the right as political payback by liberal Democrats against an administration they despised. Regardless of the reality of the corruption, cronyism, and civil rights violations of the Bush administration, the fact remains that many Republicans still believe the civil rights violations to be justified and the corruption and cronyism to be fair politics. Prosecution would be viewed as persecution by these Republicans and their voting base. Considering President Obama's efforts to undermine the GOP base with appeals to both social and fiscal conservatives on several levels, he cannot want to risk alienating them on such a massive scale.

We can approve or disapprove of this political judgement. I, for one, very much wish it were possible to pursue aggressive justice without compromising the agenda I believe to be the most liberal since LBJ, for all its flaws and basic fiscal conservatism. The best chance, in my opinion, was when the Democratic Congress first took office after the 2006 mid-terms. Most of the new Democrats were elected on promises of impeachment, and their decision to 'work with the White House' once taking office was a terrible betrayal of their campaign promises on par with Bush's 2000 statement that he had no faith at all in the concept of nation-building.

Approve or disapprove of the pragmatism inherent in the decision, we must recognize that it is pragmatic and it is valid. If we support the agenda being advanced by the White House, we must understand that we must pay the price of not being able to prosecute Bush officials unless a broad bipartisan demand to do so exists. Otherwise it will be the latest volley in a political war that has always hijacked governance when indulged. If we believe that justice must be done at all costs, we must be willing to pay that cost in the loss of a policy agenda that is desperately needed even if it is not as radical as it should perhaps be.

It should also be kept in mind, by all of us as liberals, that we chose President Obama. Liberals voted for Senators Obama and Clinton, the most conservative presidential aspirants in the Democratic Party, to the detriment of genuinely liberal candidates. The candidates who actually promised what most of the people now berating President Obama for not delivering really want, Congressman Dennis Kucinich of Ohio and former Senator Mike Gravel of Alaska, were given ridiculously small portions of the vote. I do not say this to undercut the presidency of President Obama, whom I believe to have the potential to be a great president, but rather to illustrate the inherent flaws in many of the expectations placed on President Obama by the left.

I share the desire to see justice done, but it is just not pragmatic. We elected a pragmatist, this is what comes of it. Pragmatists are rarely radical.