Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret.The fundamental problem inherent in this kind of a "retribution policy" (and that is exactly what it is) is that it will dissuade the best and the brightest from taking up a public service job. If the Obama Administration prosecutes the Bush Administration lawyers for giving legal advice on what is no doubt one of the toughest legal issues of our time, you can forget getting some of the best legal minds in the country to ever word the government again, under any administration.
Policy disputes, often bitter, are the stuff of democratic politics. Elections settle those battles, at least for a time, and Mr. Obama's victory in November has given him the right to change policies on interrogations, Guantanamo, or anything on which he can muster enough support. But at least until now, the U.S. political system has avoided the spectacle of a new Administration prosecuting its predecessor for policy disagreements. This is what happens in Argentina, Malaysia or Peru, countries where the law is treated merely as an extension of political power.
If this analogy seems excessive, consider how Mr. Obama has framed the issue. He has absolved CIA operatives of any legal jeopardy, no doubt because his intelligence advisers told him how damaging that would be to CIA morale when Mr. Obama needs the agency to protect the country. But he has pointedly invited investigations against Republican legal advisers who offered their best advice at the request of CIA officials.
So the CIA requests a legal review at a moment of heightened danger, the Justice Department obliges with an exceedingly detailed analysis of the law and interrogation practices -- and, seven years later, Mr. Obama says only the legal advisers who are no longer in government should be investigated. The political convenience of this distinction for Mr. Obama betrays its basic injustice. And by the way, everyone agrees that senior officials, including President Bush, approved these interrogations. Is this President going to put his predecessor in the dock too?What Obama is proposing is tantamount to giving a criminal defendant a pardon and then prosecuting the defendant's lawyer. Lawyers are paid to give legal advice and I will be the first lawyer to tell you, sometimes that legal advice is (a) not easy to give, (b) not going to be acceptable to everyone, even your "client" and (c) absolutely must not be considered improper just because someone else doesn't like it. It is advice--plain and simple. In this case, Justice Department lawyers gave advice and their political "clients" used that advice to formulate a policy. If you don't like the policy, fine--work to change it. But don't go after the lawyers for doing their job.
Mr. Obama seemed to understand the peril of such an exercise when he said, before his inauguration, that he wanted to "look forward" and beyond the antiterror debates of the Bush years. As recently as Sunday, Rahm Emanuel said no prosecutions were contemplated and now is not a time for "anger and retribution." Two days later the President disavowed his own chief of staff. Yet nothing had changed except that Mr. Obama's decision last week to release the interrogation memos unleashed a revenge lust on the political left that he refuses to resist.
Just as with the AIG bonuses, he is trying to co-opt his left-wing base by playing to it -- only to encourage it more. Within hours of Mr. Obama's Tuesday comments, Senator Carl Levin piled on with his own accusatory Intelligence Committee report. The demands for a "special counsel" at Justice and a Congressional show trial are louder than ever, and both Europe's left and the U.N. are signaling their desire to file their own charges against former U.S. officials.
Those officials won't be the only ones who suffer if all of this goes forward. Congress will face questions about what the Members knew and when, especially Nancy Pelosi when she was on the House Intelligence Committee in 2002. The Speaker now says she remembers hearing about waterboarding, though not that it would actually be used. Does anyone believe that? Porter Goss, her GOP counterpart at the time, says he knew exactly what he was hearing and that, if anything, Ms. Pelosi worried the CIA wasn't doing enough to stop another attack. By all means, put her under oath.
The issue of legality regarding interrogation techniques is an unusual one and almost certainly the most difficult one the Justice Department faced in 2002. It is fraught with moral, legal, international and human rights questions. But the time we live in is difficult (and was more so in 2002), it is filled with dangers that can't simply be wished away and are not subject to the same sort of left/right, right/wrong, moral/immoral dichotomies that we are used to seeing. I don't know if I could do that kind of work, but I am glad that there are lawyers for the govnerment who are willing to take on that task--we need them, no matter what party is in power.
Once you start down this path, you can't ever go back. Ours is a system and a society that is not particularly good at letting bygones be bygones.