Are There Non-Egregious Bush Crimes?
Everyone except a few bloggers has probably forgotten, if they ever knew, that last April Barack Obama made a half-hearted pledge to prosecute at least some of the crimes committed by the Bush administration. In response to a question from a DailyKos blogger, he answered carefully:
What I would want to do is to have my Justice Department and my Attorney General immediately review the information that’s already there and to find out are there inquiries that need to be pursued. I can’t prejudge that because we don’t have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You’re also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we’ve got too many problems we’ve got to solve.
So this is an area where I would want to exercise judgment — I would want to find out directly from my Attorney General — having pursued, having looked at what’s out there right now — are there possibilities of genuine crimes as opposed to really bad policies. And I think it’s important– one of the things we’ve got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I’ve said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law — and I think that’s roughly how I would look at it.
Never mind. At the recent Netroots Nation convention, close Obama adviser (and University of Chicago Law Professor) Cass Sunstein backed away from the notion of going after any Bush officials, or Bush himself, for crimes such as torture and unlawful surveillance. The exchange with Sunstein was detailed by The Nation’s Ari Melber. Melber wrote that Sunstein rejected any such prosecution:
Politicians, legal experts and progressive activists grappled with Republican abuses of power at the third annual netroots convention on Friday, debating how an Obama administration might restore the rule of law. Cass Sunstein, an adviser to Barack Obama from the University of Chicago Law School, cautioned against prosecuting criminal conduct from the current Administration. Prosecuting government officials risks a “cycle” of criminalizing public service, he argued, and Democrats should avoid replicating retributive efforts like the impeachment of President Clinton–or even the “slight appearance” of it. Update: Sunstein emailed to emphasize that he also said and believes that “egregious crimes should not be ignored.”
Are violations of the Constitution, torture and illegal surveillance therefore non-egregious crimes? What would be an egregious crime, then? Sunstein didn’t say. How about “planning, preparation, initiation, or waging of wars of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” That was the principal charge at the Nuremberg Tribunal.
See below for video and an update…
Jonathan Turley, George Washington University law professor and constitutional expert, comments:
With many Democrats still fuming over the refusal of Democratic leaders like Speaker Nancy Pelosi to allow even impeachment hearings into detailed allegations of crimes by President Bush in office… The combination of Obama’s vote to retroactively grant immunity for the telecoms and Sunstein’s comments are an obvious cause for alarm. We have had almost eight years of legal relativism by both parties…. A little moral clarity would be a welcomed change.
As time runs out on the Bush administration, we have to address the issue of pre-emptive pardons. President Bush (except in case of impeachment) has the power to pardon himself and every other criminal. On Tuesday night, Keith Olbermann talked about this possibility and interviewed Professor Turley :
UPDATE: Slate offers a neat interactive guide: Who in the Bush administration broke the law, and who could be prosecuted? Unfortunately, the guide only covers five of the Bush scandals (and not Iraq). In a related piece, Dahlia Lithwick explores what (if anything) might be done in response to the Bush administration’s widespread illegality.
July 24th, 2008 at 2:51 pm
Amy Goodman had Cass Sunstein and Glenn Greewald on a couple of days ago. He didn’t impress Greenwald either who has written the best stuff on the inernet about the FISA mess.
July 24th, 2008 at 2:59 pm
I actually should have credited Glenn Greenwald for pointing the way to some of the links in this post.