It is only an exaggeration to see the urge to criminalize our soon-to-be-former leaders, to make into courtroom drama the tragedy of the last eight years, as an extension of this same practice.

I hate to say it, but I think there's a bit of intellectual dishonesty here. Or at least unfair debate tactics. "Criminalize", as it's most commonly used among laymen (like me), means turning some activity into a crime by making it illegal. We're not talking about that. We're talking about the President and his cronies committing crimes that are already on the books. To liken this "urge" to a night of the long knives is quite insulting. As is the suggestion that people who want Cheney prosecuted being unable to see the difference between Cheney and Hitler. I'd go farther than Hilzoy to say that if Hitler's record is Fried's standard for prosecutable crimes, we might as well close up every police station in the country.

"Well, when the president does it that means that it is not illegal."
- Richard M. Nixon, The Frost Interviews

That's a high standard you've set for yourself, Mr. Fried.

Willfully stupid, or stupidly willful? The debate continues...

Either we are a nation of laws or we are not.

Rationalizing bad behavior for expedience is exactly the lack of principle this country was founded to fight against.

I say folks either amend the law, allow torture warrants as Dershowitz suggests, or get out of the way to let the folks who support the US Constitution do the right thing.

BTW,Obama has done the right thing in suggesting prosecutions are not off the table before Jan 20. This puts the pressure on Bush to make a decision on pardons.

Sweeping things under the rug is the sign of a weak society populated and run by spineless people. The last 8 years prove that doesn't work well

I don't think as a country we could pull off a trial like this. It would look too much like a political attack, or the GOP and the media would make it out to be one.

But that's not to say give them a pardon, we just have to wait some time. Remember the trials in the Czech republic for the officials who conspired with the Soviets for the 1968 invasion.

http://www.telegraph.co.uk/news/worldnews/europe/czechrepublic/1389412/Communists-face-trial-for-crushing-Prague-rebellion.html

Much of what Fried says about extenuating circumstances, reasons of state, and motives may be true, and call for discretion in both investigation, and if necessary, prosecution and sentencing is sensible. The law, and to some extent, public opinion will have to determine the appropriate extent to which those considerations should be taken into account in any investigation and procedure.

I do not see at all how that argument can be used to argue that there should simply be no serious investigation and due diligence procedure if there is a good reason to suspect crimes have been committed, no matter who the suspects are or what office they held.

It seems to me that Fried and others like him are posing false,and extreme alternatives. To use the example of the woman who murders an abusive husband, they seem to be arguing that the only choice is to investigate, try and sentence the woman as though motive and extenuating circumstances can never be considered, or just believe the woman's oath that she was justified and simply drop the whole matter on her say so. I do not believe things must work that way, and I hope that most of the public agrees with me.

So, I think Hilzoy is correct in saying that Fried's argument reduces to the bare and ridiculous assertion that nothing cannot be done without turning the US into a totalitarian government terror and vendetta, or the late Roman Republic. Fried's assertion is absurd.

I think the founding fathers would agree with me. I remember reading Jefferson's position on the issue of criminality of high public officials. I remember Jefferson writing that if a president felt obligated to violate the law or constitution in order to 'save the nation' by his lights, then if chose to do so, he should be prepared to throw himself to the country's mercy afterwards. I do not remember Jefferson writing that there should be no investigation or judgment based on the potentially criminal president's say so, or that holding high officials accountable was uncivil and rude.

Am glad to hear that Mr. Fried is a nice man, but I think his views are poisonous and very dangerous to our government and society.

I have a personal opinion that many among our depraved and decadent media elite are terrified of a serious investigation because they were derelict in their duty as journalists. They are complicit, and morally culpable, even if not criminally liable.

It is difficult to believe the US has come to such morallt, and dangerously incompetent and irresponsible (in practical terms) wreckage. It is really hard to deny that there is a strong case that high officials broke international and US law, by their own admission. I think Glenn Greenwald makes a very good case. And the route by which they are trying to do it is that, if your are a powerful government official, you can do anything, and anything can be legalized by hiring a high toned legal flunky to say whatever you are doing is legal, using whatever incoherent nonsense is most convenient. This is extremely dangerous for our country.

It is also extremely dangerous in a practical sense that these corrupt and irresponsible bigshots cannot bring themselves to acknowledge what every expert with practical field experience in interrogation and intelligence I have read has said: the information gathered through torture is unreliable, and using it is dangerous and counterproductive. Obama has said he wants to return government to a respect for expertise, knowledge, experience, facts and science. Perhaps the matter of torture is a good place to start with that. That might engender some respect for the law among the high as well as the low.

The United States has one of the highest, if not the highest, incarceration rate in the world.

It is highly selective and disingenuous to tread lightly on Bush administration officials while treading harshly on all these others.

This is particularly the case given the "law and order" rhetoric that Bush officials have been mouthing.

Unfortunately, the importance of the "rules of the game" and the custom that the electoral winners do not harm the persons of the electoral losers cannot be ignored.

Criminal trials would be extremely dangerous to the long term stability of the republic. It was the prospect of such (probably justifiable) prosecution that lead Caesar to cross the Rubicon.

A truth and reconciliation commission on the other hand, would be a great idea. It is enough to prove that Cheney deliberately promoted torture, without formally charging him. The effect is the same, without making him a martyr, or giving the next Republican administration to lose an election reason to consider a coup.

Clearly in such cases in which the crime in the mind of the criminal is succinctly necessary in the mind of the criminal for the good of the country and or is apparently convenient for the criminal then in the commission of the crime the intent is rendered entirely uncriminal and therefore its criminality cannot be fully rendered upon the criminal.

RE: Adam on January 12, 2009 at 12:19 AM.

As for a danger to the stability of the government, either course has significant danger. But I think the course of simply giving up on holding high officials accountable to the rule of law has much greater danger in the short and the long run. If one side is willing to take revenge for a lawful proceeding with vendettas and revenge of some sort, that is a chance we have to take. They will be ones culpable if they abuse, or break, the law law to take revenge, and it will be our duty to make them accountable for what they do in the court of public -and electoral- opinion,

A serious truth commission, that did not grant blanket immunity to the highest officials (and they wouldn't likely cooperate anyway), would be a poor second best, but perhaps acceptable for now. I think people who respect the rule of law must keep pressing for accountability, even if it does take some time to accomplish.

A previous rounds of law breaking during the Reagan administration was to some extent brushed under the rug, and within twenty years came back in a much more dangerous and aggressive form.

and of course, to exonerate all of these criminal acts, you have to accept the "official" story explaining the events of 11/9/01.

and since that story is such a fraud, then there can be no exoneration.

it was just another chapter in george walker bush'es malevolence. just another chapter in sticking firecrackers up the cloacas of toads in midland...and blowing them up. just to see how they disappeared.

george walker bush = joe stalin. never forget it.

It is amazing that in the news so much these days is Rod Blagojevich. Just about everyone on the planet thinks there is no doubt HE should be prosecuted.

And then there is Ted Stevens, who got convicted days before the election.

And Duke Cunningham.

And Spiro Agnew. Funny how one VP had to plead "nolo contendre" and resign as VP to avoid jail time, but somehow people think the present short-timer VP is somehow different.

And on and on, there are top level pols who have been prosecuted - but people still keep insisting that THIS time we should make an exception.

Heck, even Norm Coleman and Sarah Palin are kind of under investigation, aren't they? And Bill Richardson, too.

Everybody except Bush and Cheney. Just why IS it we should not prosecute them? Because John Yoo told them it was okay? A second level lawyer in the OLC? Well HE has a lot of authority, doesn't he?

Oh, NOW I got it:

It's not illegal if the President does it - ESPECIALLY with John Yoo's permission...

...Laws are made to be broken.

...Laws are, in FACT, sometimes broken.

...Laws are also made to BE FREAKING ENFORCED!

---Oh, did I lose me temper there? My. . . I guess war crimes kind of do that to me... sorry about that.

I guess I wouldn't have been very popular in Nazi Germany. I might have maybe even SEEN one of those Long Knives - briefly.

.

That is cute, Bush and Company just fades off into the sunset and all is O.K., Not!

That’s part of turning a page in history were what has been done in the past is identified and jumps out at all Americans to see and understand and not to make these mistakes again. If America is going to change one of the most difficult things to do is characterize an American term of leadership as not only dysfunctional but crossed the line to criminality. It has come close with Nixon but never has been done to actually condemn a family or political party in America that would likely destroy it.

Here, the Bush Family actually has a long history of dealings in banking fraud corruption assaination election manipulation complicity with mainstream media, International and foreign influence with the primary enemy as far back world war two Nazi and up to present Bin Laden family friends of which master minded 911, Osama Bin Laden. Actually bringing all that truth out to perform a serious investigation would likely embarrass huge proportions of the Journalistic community. They know the corruption has been there all along.

Please listening to historians like Beschloff and Goodwin, paid political partisans, most of the time makes me vomit. Hilzoy pulls this argument out into the open and I agree while it touches me in a special way. My God when we all get to the heavenly Gates and Saint Peter looks in his Judgement book “What is there”? How does God Judge us? What are the guidelines of God’s mercy?

It is just loaded with common sense to challenge torture and how it is done and not to do it any more. Getting rid of the Gitmo makes me feel like this is sort like Bastille Day. Looking at the French history one can see a parallel. Our country is corrupt and bankrupt. To totally let the issue just fade away into the sunset like Bush and Company are a bunch of drifting cowboys in it self shows how Charles Fried professor could be characterized as a simple and honored ambulance chaser.

What I came across is the Federal Rules of Evidence with some interesting positions to take and seriously challenge. Heaven knows the mainstream media is loaded “lawyers and judge shows” My brother in law has a favorite called “LAW AND ORDER” but these shows totally avoids illustrating some simple issues.

Like ARTICLE V. PRIVILEGES

Rule 501. General Rule

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

“”However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.””

The rule of decision will be determined in accordance with State Law.

This is a powerful part of this law…

Here is a big one for me and completely shows how Patrick Fitzgerald could have interviewed witnesses in the Blagojevich charges that have biased Blagojevich’s public opinion and guilt through media grandstanding. This same practice was displayed in the Valerie Plame case. More over, Fitzgerald with held information in the prosecution knowing who outed Valarie Plame yet is treated like a hero when in fact Fitzgerald should be disbarred and convicted for malpractice.

Check these federal rules out…some fun huh?

http://www.law.cornell.edu/rules/fre/rules.htm#Rule101

Wrong but right?

I agree that Mr. Fried's logic is seriously flawed and his analogies plain wrong. Hopefully, there are some crimes that even Mr. Fried would agree deserved post-regime punishment.

However, he may be right that the prosecutions shouldn't be pursued because they would be almost impossible to execute in practise. The right wing media outlets and much of the larger MSM would go nuts. They would point to the trials as being 'pogroms: payback and punishment for defeated political opponents. Even more fearful is that when a Republican administration eventually returns to power they would be likely spoiling for revenge and would not hesitate to prosecute previous officials on manufactured charges.

As many mistakes as GWB made, he seemed to have read the resistance of the Washington political establishment to embark on this course correctly.

Obama can appoint an independent prosecutor.

An investigation and, if appropriate, indictments can come from the independent prosecutor, with no involvement by the incoming administration.

Fried's problem thus solved. No "revenge," only justice.

"If we want to make torture by government officials legal, we should just go ahead and change the law."

Umm, we did. It's called the Military Commissions Act. It legalized virtually all forms of torture. It's still illegal to cut off someone's arms if they don't give you the right answers, but that's about it. It's also illegal to kill someone, unless the death was 'accidental,' of course. But the 'accidental' loophole is pretty damn broad and requires intent to kill for a violation. I'm guessing we could burn someone at the stake and just say "well, I didn't think that was going to kill him. His death was just an accident." In the world of espionage, there are no accidents and there are no unintended consequences. We can foresee these results, but we just don't care.

I cannot help but think that Republicans don't really believe in their heart of hearts that there should be one justice system for the leadership and another for the people. They cannot believe that we should turn a blind eye to the law which they participated in creating. The argument about the "good intentions" of the administration for the past eight years is nonsense. There were no good intentions when breaking the FISA laws, only expedience and a lack of respect for the rule of law. The same with the application of torture.

I truly hope that a bipartisan group of men and women with a profound respect for the foundations of the American legal system can be assembled to enforce the laws of the land. The Bush administration has offered a precedent that has enormous potentially damaging consequences for this nation. Bad as their era has been, the road they have paved should frighten the citizenry for fear of what may come.

Inasmuch the act of violence against a suspected perpetrator would be rendered nonviolent so long as the intent of the agent rendering the (non)violence was clearly and measurably disassociated from the realm of criminal intent rather only to tickle the toes than to remove them. This predisposition in the natural process of information gathering generally gravitates toward discomfort equal to or near death and dismemberment for the subject but a disposition of frolic and or amusement on the part of the unitary executive and shall be judged heretofore legal so long as identifiable words are detected to emanate from said subject while executive glee is minimal.

The Night of the Long Knives and the show trials by Stalin were designed to eliminate competition. They were not means of bringing criminals to justice. This is more akin to the scandalous lack of prosecution of many war criminals following WWII. Yes, we had trials at Nuremberg and in Japan, however, we, also, let other criminals survive because we needed them to either help run a nation, such as West Germany, or in our intelligence and space industries. The General of the SS Panzer unit, "Der Furher" and it's "Das Reich" troops who ordered the destruction of innocent men, women and children in French and Alsatian villages, was allowed to return to Dusseldorf, where he became a succesful business man, until his death in '71. Even some of his underlings who were tried and convicted had their sentences commuted under amnesty. The French government decided that it was "time to move on". To my knowledge, only the East Germans tried, convicted and incarcerated one German Lt from that unit. However, Pat Buchanan had St Ronny speak of several of those Waffen SS killers, interred at Bitburg, as "victims".

To hell with "Its time to move on". Tumbrels, anyone?

How soon they forget.

When Bill was in office, the Republicans in Congress felt there was no way the nation could go without a horrendously expensive fishing expedition into Whitewater. And, of course, lying about a private affair was an impeachable offense.

But now that it appears multiple laws were broken by the Bush administration, they feel we should just drop the whole matter.

Sorry... the only way you will get anyone in office to honor the laws is to enforce them.

Obama will likely appoint an independent prosecutor, probably a Republican (albeit, one who actually believes in the rule of law), who will be given wide powers to investigate and bring charges against previous administration officials.

It is a hallmark of a sane and moderate society that when it changes leaders and regimes, those left behind should be abandoned to the judgment of history. It is in savage societies that the defeat of a ruling faction entails its humiliation, exile and murder.

And the regimes that follow Obama may well judge this one if they allow evil deeds to go unpunished.

History judges not just evil men, but those who "move on", doing nothing about the injustice. Turning a blind eye to destruction of Constitutional rights is worthy of a healthy portion of contempt too. Be warned, Mr. President-elect. You have much unpleasant work ahead of you and it's not all about the economy.

As an outsider I expect nothing from the USA re: wiping its current stains off the image. After all your "exceptional" right - it is difficult for an outsider not to be sarcastic. Just take the comparisons Hitler, Mao and Stalin, pretty stunning company for the likes of pettifoggers such as Cheney, Rumsfeld and Fredo. Even Jane Mayer's couldn't bring herself to actually say the likes of the current administration was wrong and to allow an out for the gang - remember her great modifier "they had good intentions" to the most awful, from a human beings perspective of course, little schemes cooked up by the cabal.

Very entertaining to watch complex pretzels begin made.

I cannot help but think that Republicans don't really believe in their heart of hearts that there should be one justice system for the leadership and another for the people.
-----

And you're using the handle "Candide"? Cute.

...If we want to make torture by government officials legal, we should just go ahead and change the law. We should not pretend that it is illegal while excusing any torture performed for motives that any government officials who licenses torture will probably share.

That's not what Fried (and the rest of the DC establishment) want. What they want is the precedent of government officials violating laws and nothing being done to be maintained. Fried, like Nixon is saying that in this particular circumstance, they are above the law.

The prosecutor would have to ask, "Can I get a conviction." The answer will be a clear no. Outside the very top, people will be able to plead that they had legal sanction: the Justice Department memos amount to get-of-of-jail-free cards. At the very top, there would be jury nullification: one or a few of the 12 jurors would refuse to convict even given clear instructions from the bench as to the applicable law. Also, as a legal matter, conviction at the very top might involve a prior legal finding that the Justice Department memos were deliberate malpractice, directed by those accused. If those at the verey can make any plausible argument--I didn't say a true argument--that they were acting in good faith based on the advice of legal council, the factual basis for convictions would be very challenging. Consider the high risk of acquittals, and how damaging to the larger cause they might be.

[I am the person who has to read every comment on every thread, and I have grown sick of your never-ending displays of xenophobia. You are hereby warned that continued trolling on the topic of immigration will result in your IP being banned. -Mod]

Fried seems to have two arguments. One of these arguments--his moral argument that Bush-Cheney have no criminal responsibility--is risible. His other argument against prosecutions--based on prudence--is somewhat stronger.

A lot of the posters upthread have come up with some good rebuttals of this prudential argument. I have no strong opinion of my own, but would like to drag up an old precedent. Abe Lincoln, I have heard, was rooting for Jefferson Davis to make good his escape to Cuba, so he wouldn't have to prosecute Davis for treason. Come to think of it, Lincoln chose to not prosecute a few million people for treason, although the legal issues were very plain.

charles fried's use of south africa as an example the united states should follow is absurd.

the south african truth and reconciliation was for crimes against citizens within the confines of the country.

the crimes committed by the bush administration are international war crimes, committed against people who are not citizens and, in most cases, are committed outside of the united states (with knowing authorization from washington, dc.)

i don't care how nice obama is or that he will eschew torture in his administration. if these crimes are not addressed directly and appropriately in a court of law, it will happen again.

Joe S.,

"Come to think of it, Lincoln chose to not prosecute a few million people for treason, although the legal issues were very plain."

Does anyone in their right mind think it would have been a good idea to prosecute millions of Southerners for treason? It's the most insane idea I've ever heard (and I'm a staunch "Unionist" when it comes to the Civil War). Doing that would be a great way to make the U.S. into another Northern Ireland or Israel/Palestine.

It would seem convenient that Fried ignores the consequence of not prosecuting political criminals (although it is possible he did as I did not read his piece). It is for lack of prosecution of Watergate and Iran-Contra that we have the criminality of the bush regime. (It is also not insignificant that many of the same criminals of the prior lawless republican administrations are involved in the bush regime crimes, that these are repeat crimes.) Accordingly, it is far from far fetched, and in fact highly likely that a failure to prosecute the bush regime criminals (regardless of conviction) will surely result in further, probably worse criminality by the next republican administration.

SHORTER POST: prosecuting the bush criminals is as much about future crime prevention by politicians and re-establishing respect for the rule of law as it is anything else.
.

> If you cannot see the difference between
> Hitler and Dick Cheney...

Does no one recognize Godwin's Law anymore? Jesus Hitler Christ, the two-word response of "Godwin's Law" is sufficient to obliterate his argument. No, Cheney is not Hitler/Stalin/Mao.

Neither is Osama bin Laden, who killed only a few thousand people, not millions. Therefore we should not attempt to find, prosecute, imprison, kill, etc. bin Laden, by his argument.

For what it's worth, Hitler indulged in his wonderful adventure for the benefit of the German nation. He didn't do it to line his own pockets. Pol Pot also did what he did for the benefit of the Cambodian people, not for his own benefit.

To argue that Cheney/Bush should get off just because of their "motives," (and Halliburton and numerous other Republican corporations did quite well, thank you, making Cheney's and Bush's motives more than a bit suspect) makes a laughing stock of our whole legal and moral system. I would be more impressed with this argument if the same people making it wouldn't get their underpants all twisted when someone vandalizes a military site to protest the war or when a soldier deserts because s/he feels the war is illegal.

If Charlie Fried cannot see the difference between the United States Department of Justice's duly constituted, non-partisan prosecution of suspected criminal activity and the Roman emperors, the Soviet Union of Lenin and Stalin, or the night of the long knives when Hitler eliminated his closest associates and rivals, then I'm afraid that there's no point in any rational person talking to him again.

The answer will be a clear no. Outside the very top, people will be able to plead that they had legal sanction: the Justice Department memos amount to get-of-of-jail-free cards.

Sorry, but the "I was just following orders" defense hasn't been valid since the Nuremberg war crimes trials. The Nazi war criminals, let's remember, also had legal sanction, and most of what they did was perfectly legal according to German law at the time.

It is a hallmark of a sane and moderate society that when it changes leaders and regimes, those left behind should be abandoned to the judgment of history. It is in savage societies that the defeat of a ruling faction entails its humiliation, exile and murder.

Which is why, of course, that when Nazi Germany changed its leaders and regimes that those left behind, such as Hermann Goering, Rudolf Hess, and Joachim von Ribbentrop, were not prosecuted and were instead abandoned to the judgment of history. It would only have an insane, immoderate and savage society indeed that would have attempted to prosecute the Nazi leade....oh, wait, what? Oh, um. Never mind.

It is not just a difference of scale, but our leaders were defending their country and people -- albeit with an insufficient sense of moral restraint -- against a terrifying threat by ruthless attackers with no sense of moral restraint at all.

Almost every dictator and tyrant in history has excused his atrocities with the claim that they he was merely defending his country and people from a terrifying threat by ruthless attackers with no sense of moral restraint at all. Stalin claimed he was defending the Soviet Union against ruthless capitalist spies, Hitler that he was defending Germany against Zionism and Communism, Mao that he was defending China against counter-revolutionaries, Pinochet that he was defending Chile against the communists, and Saddam that he was defending Iraq against the Iranians and Kurdish separatists. They always had some patina of trumped-up justification, and always claimed that the threat they were defending against was itself so ruthless, so shadowy and implacable, that only the most extreme methods would work. I'm afraid, therefore, I find this excuse less than compelling when Fried again polishes it up and trots it out in his defense of war crimes and law-breaking.

James M said:

However, he may be right that the prosecutions shouldn't be pursued because they would be almost impossible to execute in practise. The right wing media outlets and much of the larger MSM would go nuts. They would point to the trials as being 'pogroms: payback and punishment for defeated political opponents.

And they would have a valid point about this, since these programs went ahead with a great deal of tacit complicity from the Democratic leadership.

How can Democrats come out now against these things when they were silent about it when they were occurring? And when they have delivered consistant pro-torture and pro-wiretapping votes when bills come up?

The reason this will go nowhere is that too many people in high places - on *both* sides of the aisle - think that there was never any wrongdoing.

One of the things I have always liked about him is that he has always been up for a good argument, even back when I was an obstreperous eight year old.

What Fried is making here is not a good argument. It is a pathetic, simplistic, confused and illogical argument.

[The right wing noise machine] would point to the trials as being 'pogroms: payback and punishment for defeated political opponents.

Yeah, but thats until the eyewitnesses, whose testimony everyone already could have read in the Taguba report, take the stand. After that everyone will be silent. Especially the moral outrage homophobia predator scaremongering based noise machines like FOX.

Don`t read it, it will haunt you, just trust me on this. It will haunt you even before you realize Bush, Cheney and Rumsfeld were briefed... and did nothing.

So basically Nuremburg was a wash, Hitler should have been excused posthumously, Mussolini should have been forced to apologize, Eichmann should have been released by the Israelis with a very stern lecture, and accountability is finally, truly left for the poor: Charles Graner and his ladyfriends at Abu Ghraib.