Super Lawyers
William C. Altreuter

Friday, January 16, 2009

Nixon slunk away, and Ford pardoned him. At the time I think we all felt that the lesson was that the system worked. Crimes were committed, but a penalty was extracted, and there was no long-term damage. What we are looking at now, at the end of the Bush Administration, is something entirely different. There has been damage done by this President, damage that is consequential and meaningful. An Administration that came into being as a result of a legal ruling has operated outside the law, in absolute contempt for the processes that have distinguished America from tyrannies for the past 230 years.

On some level the question of whether the members of the Bush Administration who authorized its illegalities should be criminally prosecuted is the mirror image of another problem the Bush Administration has created. President-elect Obama has indicated that he is going to shut down Guantanamo Bay, and now there is hand-wringing about what to do with the people who have been imprisoned there. The answer to both questions is the same: prosecute, if you can. If you can't, let 'em loose.

The genius of a functioning legal system is that it works, if you let it. The problem with the Bush Administration-- beyond the fundamental question of its principals' overall competence-- has been that it does not trust the process. You might argue that their distrust is understandable. After all, they were in office and in power as a result of a fraud that was winked at by the highest court in the land, and I wouldn't disagree. When you think about it, a distrust of the legal system has pervaded just about everything the Bush people have done. Secret meetings, illegal wiretaps. The US Attorney scandal. The Bizarro-world assertion that the Office of Vice President was not a part of the Executive Branch. We have a problem with Guantanamo because they were afraid of the criminal justice process, and now, because they have abused it. They treated a legal problem as though it was a political problem, and now, as a result, we are stuck with a bunch of bad guys. The only thing that can be done is to turn them over to the process, because to continue holding them breaks down the federal criminal justice system. The US courts are fundamental to the country's ability to operate in the world. If other nations believe that our justice system is as flawed as the Bush Administration apparently did then we will have have lost our standing as the world's leading commercial and economic power, and we will have lost our ability to argue that we are some sort of moral beacon. If our own President is afraid of the ability of the legal system to get something right, why should anyone else anywhere believe in it?

So that's the answer to Guantanamo. Shut it down, and prosecute the people you can. If you can't, or if the courts determine that illegal detention and torture on grounds for dismissal then we have deportation processes that worked eight years ago and will work again. Dahlia Lithwick gets it right on the question of what to do about the people who got it wrong: they should be subject to the legal process as well. "Nobody is looking for a series of public floggings. The blueprints for government accountability look nothing like witch hunts. They look like legal processes that have served us for centuries." We have to demonstrate that we believe in the capacity of our legal system to get it right. If the torturers had a good-faith basis for believing that their actions were legal-- if "advice of counsel" wasn't merely something they cooked up, like those weapons of mass destruction-- then that's a legal question, not a political one. We need answers, and the legal process will provide them. Lithwick again:

"It’s not a witch hunt simply because political actors are under investigation. The process of investigating and prosecuting crimes makes up the bricks and mortar of our prosecutorial system. We don’t immunize drug dealers, pickpockets or car thieves because holding them to account is uncomfortable, difficult or divisive. We don’t protest that “it’s all behind us now” when a bank robber is brought to trial.

And America tends to survive the ugliness of public reckonings, from Nixon to Whitewater to the impeachment hearings, because for all our cheerful optimism, Americans fundamentally understand that nobody should be above the law. As the chief prosecutor for the United States at the Nuremberg trials, Robert Jackson, warned: “Law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power.” '

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