White House chief of staff Rahm Emanuel said over the weekend the administration did not support prosecutions for “those who devised policy.” Aides later said he was referring to CIA superiors who ordered the interrogations, not the Justice Department officials who wrote the legal memos allowing them.Then came Obama’s comments Tuesday when a reporter asked him if he backed prosecution for those who devised the interrogation policy. He had already shot down the idea of prosecuting any of the CIA agents who carried out the interrogations on grounds they were following the law at the time.
Wow, so the standard now is that you’re off the hook for crimes against humanity if the lawyers told you it was okay? Sweet! Does that work for other crimes as well?
The original Nuremberg defense rested on the premise that soldiers could not be held legally responsible for following the orders of the duly constituted political authority of their country. That defense has been rejected for over 70 years. The legal standard is that “crimes against humanity” are simply illegal regardless of the political authority that authorized them. Do we really want to open a loophole that says it’s okay for soldiers and other agents of the state to commit crimes against humanity if their legal department gives them the green light?
Obama wants to have his political cake and eat it too. Given his years of opposition to “torture” and the Left’s deep psychological need to punish those who disagree with them, Obama has to hold somebody accountable for carrying out enhanced interrogations. However, the public won’t support going after the soldiers, officers and agents who actually conducted the interrogations. Putting Bush and the other elected officials on trial would be a political nightmare which could backfire badly. To get around these problems, Obama has hit on the idea of prosecuting some largely anonymous lawyers instead.
I think Obama believes that the general public holds lawyers in general in disregard and will not become angry if he targets them alone. He can make these lawyers the scapegoats for “torture” and thereby throw some red meat to his most radical supporters, while at the same time taking himself off the hook for bald-faced hypocrisy. The trials will be stamped in the public imagination instead of his continued use of the majority of Bush’s intelligence methods. He can create a marketing campaign around the illusion that he has corrected Bush’s doctrines, while at the same time using Bush’s techniques to fend off a politically damaging terrorist attack.
Obama is clearly trying to pull a slick trick with a leftist’s standard disregard for the long-term consequences of his actions. What will happen long term if we establish a legal precedent that holds the lawyers who create legal justifications for acts responsible for those acts, instead of those who order and carry out the acts? Could we hold corporate officers responsible for financial misconduct as long as they have an opinion from their legal department saying it was okay? Would lawyers give honest legal advice to anyone if they feared that they and they alone would be held responsible for the actions of others?
(Such a tactic could also backfire politically if Bush or Cheney steps forward to claim responsibility instead of the lawyers. Given Bush’s long-recognized sense of loyalty, it’s a definite possibility.)
Hanging the lawyers is nothing but a cheap political stunt with dire long term consequences. It reveals that Obama stands firmly in the leftist tradition of hysteria and hypocrisy about America’s supposed war crimes.