In a recent Newsweek column, after pointing out both the immorality and illegality of the Bush Administration’s use of torture on prisoners, Howard Feinman asked:
”What is Obama’s explanation for not strictly applying the law, American and international? It’s not moral, it’s practical: We need to move on; we have bigger, more urgent issues to face; we have the morale and potency of the CIA to protect as it tries to deal with treachery and terrorism. But none of that evokes or connects with the stirring moral vision with which Obama started his candidacy only a few years ago. Asked about Obama’s philosophy of government, the official said that the president views himself as “a devout non-ideologue. He wants to do what works.” And that is undoubtedly true. The problem is, he said something more when he launched his campaign.”
Obama’s conflict between what he thinks is moral, and what he thinks is practical, is certainly one problem; but the more serious problem, fuzzed up a little in Feinman’s column which tends to couple the moral and the legal aspects of the situation, is the conflict between doing “what works” and enforcing the law, as he promised to do in his oath of office. There is no doubt that those who planned, justified, and committed torture broke US laws which require compliance with International Treaties we helped write and agreed to. So, in addition to the moral/practical conflict, the president also has the legal/practical conflict to contend with, and it is this conflict that perhaps cuts more deeply since both legal and moral obligations attach to it.
Nor is it just a matter of the immediate legal and moral implications that the president must resolve. He must also consider the long-term “practical” implications of what he decides. If he decides not to hold the torturers accountable, he will, perhaps, minimize partisan conflicts, and, he hopes, the “distraction” from his efforts to secure the future in the areas of economic recovery, energy independence, education, health care, and infrastructure reconstruction. On the other hand, if he does that, he may maximize the conflict between those, of whatever party, who cherish the constitution and the rule of law, and those who believe that procedural niceties must give way to national security and safety concerns, and who, if the truth be known, don’t particularly value constitutional democracy and open society, anyway.
In addition, if he puts aside prosecutions, he has to worry about the impact that will have on future administrations. In the perspective of history, it now seems clear that those who celebrated Jerry Ford because he gave President Nixon a pardon to prevent the nation from being torn apart were quite wrong to do so. That pardon was pennywise and pound foolish. It taught lessons to the young Dick Cheney and Donald Rumsfeld that they never should have learned. It taught them that presidents and their close associates are above the law. Ford’s forgive and forget precedent, along with President Bush, the elder’s pardon of Caspar Weinberger for his transgressions in the Iran-Contra Affair, has created the impression that high level officials can break our laws and not suffer the consequences. This impression has been strengthened by George W. Bush’s commutation of I. Lewis Libby’s sentence after Libby’s conviction on one count of obstruction of justice; two counts of perjury; and one count of making false statements to federal investigators.
The idea that high-level officials are exempt from punishment when they break laws is corrosive to our democracy. It destroys the general respect for law. It teaches citizens that political power is what counts and not law. It teaches them that we have no obligation to obey the law, and that we must only do things that we don’t want to do when those who want us to do them are more powerful than we are. It teaches, in other words, that might is right, and that law is not important. So this effect too, is a possible practical consequence of a decision to avoid prosecutions. If such a decision “works” to minimize partisan conflict, and if it “works” to enable us to deal with the economy and the president’s other policy priorities, he also has to consider how well it would “work” for him and for us, when Americans, young, mature, and old, all say to themselves, “Law is just BS. It’s power that counts, so let me get some of that, and when I screw up I won’t have to pay the price anyway.”
And, in addition to this general corrosiveness, it also creates the much more specific corrosive lesson for those who served in the Bush Administration, that when, at some time in the future, the Republicans return to power, and those who served George W. Bush are called upon once more to go beyond the laws to consolidate Republican power and stifle Democrats and legitimate dissent through whatever means, either legal or illegal they can think up, that they, in demonstrating their loyalty, won’t have to worry about punishment, no matter what laws they break, and no matter the harm they do; for the simple reason that either their Republican president will pardon them before he/she leaves office, or, failing that, the succeeding Democratic President will surely be so concerned about bringing the country together and cleaning up the total mess left by the Republicans, that there is no way she/he would dare to prosecute even the most outrageous violations of law committed by officials of the previous Government.
And, Mr. President, when your presidency is all done, and you are safely retired, and the country is even more worse off than it is today, how will all that “work” for you then?