Peter Friedman
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Ruling Imagination: Law and Creativity

February 17th, 2009 | Law Enforcement, legal madness

Are we not men of laws?

No.  We are, apparently, Devo.

I’m with Glenn Greenwald on this one. In today’s Washington Post, David Rivkin and Lee Casey argue that there should be no domestic efforts to prosecute U.S. officials for any crimes they may have committed (under domestic law and under treaties to which the U.S. is a party) in purported furtherance of the “War on Terror.” As Greenwald points out, Rivkin and Casey have previously criticized international efforts to prosecute U.S. citizens for crimes committed in purported furtherance of U.S. interests because “‘[I]t is up to American . . . authorities to determine whether any offense was committed.’”

The logical inference to draw from these arguments is that U.S. officials are entirely unencumbered by any legal restraint as long as they believe they are carrying out what they consider the best interests of the nation. Greenwald writes:

The implication of their argument — which is now the conventional Beltway view — is too obvious to require much elaboration. If our political leaders can’t be held accountable for their war crimes and other serious felonies in foreign countries or international tribunals, and must never be held accountable in the U.S. either (because to do so is to “pour acid into our democratic machinery”), then it means that American political officials (in contrast to most other leaders) are completely and explicitly exempt from, placed above, the rule of law. That conclusion is compelled from their premises.

At least to me, it’s just endlessly perplexing how anyone — let alone our political class in unison — could actually endorse such absolute lawlessness for political leaders. Didn’t our opinion-making elites learn in eight grade that the alternative to a “nation of laws” was a “nation of men” — i.e., the definition of tyranny? Those are the only two choices. It’s just so basic.

This article has 3 comments

  1. Lee Epstein Says:

    I was interested to hear Lanny Davis speak out against prosecuting administration officials when I would have expected him to be leading the charge. Is there a way to be pro-prosecution and anti-retribution?

  2. pfriedman Says:

    I think there is a way to be pro-prosecution and anti-retribution: investigate and, if the facts show criminal activity, prosecute. Prosecution of criminals is not retribution for retribution’s sake. It’s upholding the rule of law. Are government officials supposed to be unconstrained by law if they think they’re doing the right thing? I think historical precedent (not to mention far too many contemporary examples) make clear that cannot be a valid defense to criminal activity.

    But people think that calling for investigation of Cheney, Rumsfeld, Yoo, et al. is retribution because they think it’s all political.

    I cannot read and research the underlying rationales of those torture memos, though, without being convinced they were written under orders to come up with anything to justify the desired result — LET US WATERBOARD!

    Can’t we at least look into it? Aren’t torture and rendition and detention without any hearing unconscionable? Isn’t what happened to Mahar Arar a crime against humanity? http://blogs.geniocity.com/friedman/?p=1346

    And Lanny Davis is a surprise in some ways, but he is part of that Washington establishment. All you have to do to get a taste of the crazy pretense to “even-handedness” that is the hallmark of the point of view emanating from that sphere is listen to Cokie Roberts in the morning on NPR.

  3. Lee Epstein Says:

    You are preaching to the choir. I am ashamed that we let these guys get away with what they did. I wish we had the collective fortitude to at least stop the things we were aware of – - the Iraq war for example. I remember folks like Sean Penn and Tim Robbins speaking out when I was silent. While investigation/prosecution may be warranted, I wish I had done something to stop the things I knew were wrong.

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