With Liberty and Justice for Some (23 page)

Aside from a desire for just retribution, the principal reason we impose penalties on those who commit crimes is deterrence. The punishments are there to provide an incentive for potential lawbreakers to refrain from breaking our laws, to outweigh whatever benefits they might derive from criminal activity, rather than deciding that it is beneficial to do so. Though there is legitimate debate about how best to prevent crime and how effective jail terms ultimately are, deterrence of future crimes has always been, and remains, a core purpose of the criminal justice system. That is about as basic as it gets.

Punishment for lawbreaking is precisely how we try to ensure that crimes “never happen again.” If instead, as Marcus and so many of her media colleagues suggest, we hold political leaders as harmless when they break the law, if we exempt them from judicial punishment, what possible reason would they have to refrain from breaking the law in the future? The important thing, Marcus says, is “ensuring that these mistakes are not repeated.” But by telling political leaders that they will not be punished when they break the law, we achieve exactly the opposite. As Hamilton warned in
Federalist 15:

Marcus rightly observed that the controversies that arose over Bush lawbreaking are not new; indeed, they seem to arise over and over again. And why is that? Because our political leaders keep breaking the law, chronically and deliberately. And why do they keep doing that? Because there is no punishment—hence no deterrent. Every time we immunize political leaders in the name of ensuring that lawbreaking never happens again, we guarantee that it will. Immunity only breeds more immunity: Richard Nixon is pardoned, J. Edgar Hoover’s lawbreakers are protected, the Iran-Contra criminals are set free and put back into government, Lewis Libby is spared having to serve even a single day in prison despite multiple felony convictions. And now we have even let go unpunished those who spied on Americans and tortured detainees in violation of numerous treaties, domestic laws, and the most basic precepts of civilized Western justice.

The effect of this leniency is to signal to current and future political leaders that they, too, can break the law without suffering consequences. Indeed, the rehabilitation of the last decade’s war criminals is so complete that their war crimes haven’t even damaged their careers. Not only are the nation’s torturers, criminal eavesdroppers, and other chronic lawbreakers not in prison, but—just like the Iran-Contra criminals before them—they are thriving, with their platforms undiminished and their reputations as honorable public servants fully intact.

Several Bush officials with direct involvement in the torture regime now enjoy high-level positions in Obama’s administration. General Stanley McChrystal became Obama’s top military commander in the war in Afghanistan despite ample evidence that detainee abuse was rampant under his command. (He was later dismissed in the aftermath of a controversial
Rolling Stone
interview.) The Bush-era CIA official John Brennan is Obama’s top terrorism adviser despite his multiple statements endorsing rendition and “enhanced interrogation tactics” other than waterboarding. William Lietzau became Obama’s deputy assistant secretary for detainee affairs even though during the Bush years he had been a key aide to Jim Haynes, the top Pentagon lawyer who gave legal sanction to the torture regime.

The message all this sends to America’s political class has been heard loud and clear. High-level political officials are now well aware of the immunity they enjoy and make little attempt to hide it. In February 2010, Dick Cheney went on
ABC News
and openly boasted of the role he had played in ordering the waterboarding of detainees, insisting that what he authorized was the right thing to do and all but taunting the Justice Department to do something about it.

A handful of commentators pointed out that Cheney’s statements were tantamount to a guilty plea to serious felonies. The
Atlantic
’s Andrew Sullivan accurately described Cheney’s statement as a “confession of committing a war crime on national television.” Scott Horton of
Harper’s
, an international human rights lawyer, pointed out the specific criminal statutes Cheney had admitted violating, made clear that there is no possible doubt regarding the criminality of waterboarding under U.S. and international law, and then asked, “What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it?” But on the whole, major media outlets competed to offer Cheney a platform and treated him with the respect reserved for honored statesmen.

In general, people who commit felonies avoid publicly confessing to having done so, and they especially avoid mocking the authorities who failed to lock them up. Cheney is certainly not stupid, and yet he was doing exactly that. Indeed, throughout 2010, he gradually escalated his boasting about having authorized illegal policies. Why? Because he knows there will never be any repercussions, that he will never be prosecuted no matter how openly he talks about his serious crimes. And can anyone doubt that Cheney’s assessment is right?

That same year, George W. Bush released his memoirs to great media fanfare. His being feted by virtually every media outlet was in no way impeded by the fact that in his book, the  forty-third president followed Cheney’s lead—not merely acknowledging, but proudly boasting about, his decision to order waterboarding. (“Damn right,” he eloquently wrote.) The week after his book’s publication, the
Washington Post
editorial board furrowed its brow, scratched its chin, and wondered—as the
Post
’s headline put it—“Why George W. Bush Can Confess to Approving Torture,” even though, “waterboarding…had been considered a crime by the U.S. government for at least 90 years.” The
Post
editors came up with the following answer.

Actually, the fact that Bush got his own lawyers to write permission slips for him to break the law and torture people is only one reason that he feels free to publicize a book confessing to war crimes. Another reason is that America’s media class is filled with people like the
Washington Post
’s own editorial page editor Fred Hiatt, who just the year before had urged that there be no criminal investigations or prosecutions.

In lieu of criminal investigations, Hiatt proposed an alternative. He suggested setting up what he called “a fair-minded commission,” to be led by two old Washington hands—for instance, Sandra Day O’Connor and David Souter. As Hiatt imagined it, the commission would have no punishment power of any kind but would merely “examine the choices made in the wake of Sept. 11, 2001, and their consequences.” It was a puzzling proposal. Aside from the fact that the Obama administration had already refused the possibility of an independent commission, how could this O’Connor-Souter panel possibly compel people never to torture again?

Sure, Hiatt acknowledged with a yawn, we’re “a nation of laws” and we can’t simply forget when our most powerful political officials commit the most serious war crimes, et cetera, et cetera. But criminal investigations are so terribly messy, uncivil, uncouth, distracting, and disruptive. Criminal prosecutions are for the dirty rabble on the street, not for our upstanding, serious political leaders. When
they
commit grievous crimes, we should have an impotent commission of other upstanding, serious political leaders politely look at what happened, issue a pretty embossed report, and then call it a day.

The reason that George W. Bush and Dick Cheney feel so free to run around beating their chests and boasting of their war crimes is ultimately the same reason that future leaders will undoubtedly violate the law boldly and without fear: because Fred Hiatt and his media comrades, masquerading as watchdogs over the politically powerful, have created a climate where such crimes can be not only committed, but publicly confessed and heralded, with total impunity.

Accountability for Others

The dangers and injustice of elite immunity are not unknown to America’s politicians and journalists. They’re fully aware of the risks. That is evident by how frequently they lecture other nations about the need to uphold the rule of law by imposing accountability on their most powerful leaders.

In March 2010, President Obama gave an interview to an Indonesian television station. Two years earlier, Indonesia had empowered a national commission to investigate human rights abuses committed by its own government under the U.S.-backed Suharto regime in an attempt to bring the perpetrators to justice. Asked about the commission, Obama stressed the importance of acknowledging past human rights abuses. In a complete reversal of his administration’s usual motto, he told the Indonesians, “We can’t go forward without looking backwards.”

In July 2009 Obama gave a similar speech in Ghana, calling on all Africans to apply “the rule of law” by punishing their nations’ past leaders for corruption. As
CBS News
reported, Obama insisted that only such punishment could ensure “the equal administration of justice,” and vowed that “we will stand behind efforts to hold war criminals accountable”—meaning, of course, only African war criminals.

In August 2009, Obama’s secretary of state, Hillary Clinton, visited Kenya and delivered yet another rule-of-law sermon. A
New York Times
account of that visit mentioned “the pressure America has put on Kenya to set up a special tribunal to try the perpetrators of the election-driven bloodshed last year, in which more than 1,000 people were killed.” Asked by the Nairobi press about the Kenyan government’s rejection of that proposal on the ground that such efforts would be politically divisive, Clinton said, “We are waiting; we are disappointed.” In response to suggestions that the International Criminal Court in The Hague, rather than Kenya, might investigate and prosecute the perpetrators, Clinton recalled Kenyans to their task: it is “far preferable that prosecutors, judges and law enforcement officials step up to their responsibility.”

In November 2010, Secretary Clinton visited Cambodia and, according to the
New York Times
, urged that nation to promptly hold trials of the former regime’s surviving leaders in order to “confront its past.” According to the
Times
article, the secretary of state insisted that “a country that is able to confront its past is a country that can overcome it,” and warned: “Countries that are held prisoner to their past can never break those chains and build the kind of future that their children deserve. Although I am well aware the work of the tribunal is painful, it is necessary to ensure a lasting peace.”

Similar pieties were commonplace during the Bush administration as well. In December 2008, U.S. prosecutors asked a federal judge for a sentence of 147 years in prison for Charles Emmanuel, the son of former Liberian president Charles Taylor, who had just been convicted in an American court of having tortured people when he was chief of a paramilitary unit during his father’s reign. Emmanuel was the first person convicted under a 1994 law that—implementing the obligations of the Convention Against Torture—allowed prosecution in the United States for acts of torture committed overseas. As part of their request for such a harsh sentence, Bush DOJ prosecutors filed a brief that shamelessly proclaimed that government-ordered torture “undermines respect for and trust in authority, government and a rule of law.” And weeks later, Bush’s attorney general, Michael Mukasey, gave a speech at the Holocaust Museum in which he praised the Bush administration’s prosecution of Emmanuel as an exemplary instance of America’s devotion to the rule of law.

More amazingly still, a 2006 report from the Bush State Department condemned the Russian government for failing to comply with its own laws on domestic eavesdropping, and for refusing to impose accountability on the government leaders who were responsible. The report noted that “the law [in Russia] permits the government to monitor correspondence, telephone conversations, and other means of communication only with judicial permission,” and lamented that surveillance had been carried out without the warrants required by law. Worse, the State Department complained, “there were no reports of government action against officials who violated these safeguards.” Behold Russian tyranny as condemned by the U.S. State Department: the Russians not only spy on their own citizens without the warrants required by law, but then fail to prosecute those who do so.