Do the values of America’s lawyer in chief demand his predecessors’ prosecution?

David Broder today writes of Barack Obama’s coming into his own as commander in chief. Obama has been helped immeasurably in this respect by his simultaneous emergence as the country’s lawyer in chief. Never have those skills been so well displayed as during today’s speech delivered at the National Archives in defense of his decision to close

Guantanamo. 

Obama’s arguments today were methodical, rigorous, substantiated by facts and guided both by logic and principle. They stand in stark contrast to those of the one man who doesn’t seem to realize the Bush administration is over, the modern equivalent of one of those Japanese soldiers wandering an atol in the Pacific long after the end of World War II, continuing to fight for ideas and goals that have long since been discredited and defeated. That would be, of course, Dick Cheney, who at best is merely shrill, bitter, and hysterical and at worst is the unrepentant architect of policies and programs that willfully violated and offended the spirit of the constitution of the United States. (More on this last point shortly.)

Obama may be the best lawyer to occupy the U.S. presidency since William Howard Taft went from the White House to being Chief Justice of the Supreme Court. In fact, he is likely better than the affable and ginormous Taft and, who knows, may someday follow in the (deep) footsteps of the man who was also famous for having gotten stuck in the nation’s First Bathtub. Standing in front of the documents that serve as the legal and moral foundations of American society, Obama offered a plain-spoken but powerful argument: Rather than “strategically applying our power and our principles, too often we set those principles aside as luxuries that we could no longer afford. And during this season of fear too many of us — Democrats and Republicans, politicians, journalists, and citizens — fell silent. In other words, we went off course.”

He effectively made his case that due process and a respect for our system of law would do more to protect us than would the Bush approach which might be characterized, to paraphrase Clare Boothe Luce, as cutting the constitution to suit the fashions of the times. Laying out category after category of detainee and explaining how they should be treated consistent with both our national interests and the prevailing views of the U.S. judiciary, he described an approach so logical and consistent with American concepts of fairness, that it not only makes the fringe-dwelling Cheney sound out of touch, it makes the entire U.S. Senate (or the 90 who voted yesterday against appropriating funds to shut down Guantanamo) seem to be petty, political panderers. How ludicrous they seem fearing to locate terrorists from Guantanamo alongside the hundreds of terrorists already in America’s network of impregnable Supermax and similar facilities. How responsible and constructive comments from Dianne Feinstein and Lindsay Graham have therefore been in noting the absurdity of the self-interested NIMBYism of their colleagues.

Cheney, who offered a set of counter-point remarks, was legally, morally, and intellectually out-gunned by the president. Nowhere was this clearer than in the description of his speech by an aide in which he described it as arguing “”our values are not abrogated by prioritizing security for innocents over rights for terrorists.” It is a powerful statement that captures everything that is wrong with their view. It is precisely the idea that we can suspend the rights of suspected wrong-doers in order to “protect” the rest of society that undercuts our entire system of law. That system specifically enshrines rights for the worst of criminals to ensure that it is not fear nor political sentiment nor the view of any individual or even the majority that drives the legal process but that instead all of us are equal under the law.

Or as Cheney said during his speech, “There is never a good time to compromise when the lives and safety of the American people are in the balance.” Exactly. It is precisely at such moments that our convictions and values are tested and we reveal the character of our leadership and our country.

Which gets us to the one thing that Obama asserted today that I questioned while hearing his remarks…in part because the rest of his statement was so compelling. He remarked that he did not want to dwell on rearguing the debates of the Bush years but would rather move forward to focus on the challenges of today. Fair enough. But, I wonder if he does not misread the historical significance of the missteps of the Bush era, particularly those associated with Guantanamo, torture, and Abu Ghraib. More than the bungling in Iraq, more even than the lies associated with getting into that war, it was these moral failures that damaged the United States and the Bush administration, did more damage by far than any the terrorists could inflict. In fact, what we did played directly into the plans of the terrorists themselves, casting us in a light that served their objectives. 

Which is why I am starting to think that this is not like Watergate, a domestic political wound Gerald Ford was right to cauterize with his pardon. Domestic and international laws were broken by the last administration beginning with president and vice president’s deliberate decision not to preserve, protect and defend the constitution of the United States. I am not for prosecuting lawyers who interpreted the law to meet the requirements of their bosses. But I do think that leaders in any nation need to be held accountable for any crimes they may have committed or ordered. If the United States does not choose to identify and prosecute even those in high positions who violate the law we set a dangerous precedent…regardless of whether or not the incidents in question are so distasteful we want to move past them.

Further, if we don’t, I feel it’s a pretty fair bet that sometime soon a prosecutor beyond our borders will seek to prosecute Bush or Cheney for what they did. (Compare their actions to others whose prosecutions we have supported…in terms of values, casualties, costs, laws broken.) It may not be an outcome Obama seeks…but it may be the one called for by the values and laws he so eloquently defended today.

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