Let's look into these unpatriotic Americans who want to prosecute patriotic Americans.

Dubious and far-fetched ideas.
March 11 2009 2:40 PM

Investigate the Investigators!

Let's look into these unpatriotic Americans who want to prosecute patriotic Americans.

It's all gone completely out of hand. First we had the Obama administration last week releasing a pile of super-top-secret memos in which it was suggested that the president could ignore any of the odd-numbered amendments (like the First) and also ignore the even-numbered ones (like the Fourth) if the Bill of Rights ever got in the way of his war on terror. The legal analysis therein was so bad, the memos actually came with an official apology for their own badness. Days later, there was John Yoo, formerly of the Office of Legal Counsel and principal author of these memos, arguing forcefully in the pages of the Wall Street Journal that if President Barack Obama adheres to the rule of law in the war against terror, he'll be caught blinking stupidly into the middle distance as terror plots unfold. Indeed, Yoo went so far as to warn the new president that "risk aversion" should probably not guide his anti-terror strategy, as though Obama perhaps plans to fight al-Qaida by hiding under various antique coffee tables.

But there's more! Because it seems the Obama administration has dispatched its own lawyers to San Francisco to represent John Yoo in a civil lawsuit by a prisoner, Jose Padilla, who claims his treatment in detention was the direct result of Yoo's shoddy legal work. Then the Senate judiciary committee convened a hearing on whether there should be a truth and reconciliation commission to look into high-level lawbreaking in the Bush administration—except Republicans on the committee took the paradoxical position that all this proposed truth and reconciliation would get in the way of prosecuting Bush administration lawbreakers.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.


America is meant to be getting over government-authorized torture and eavesdropping and warrantless searches. In the parlance of President Obama, we are supposed to be turning the page. But a growing number of malcontents and backward-lookers (evidently more than two-thirds of you!) are somehow not quite ready to put the lawbreaking of the last eight years behind them. Some of you want prosecutions. Some want truth commissions. Some want special prosecutors. Some want war crimes tribunals. But the emerging consensus appears to be that when the government secretly breaks the law for eight years, the people may want some sort of public accounting.

This will never do.

As we have heard innumerable times, we in this country are just too busy to be obsessing about past wrongs. We need to refocus our minds on repairing the broken economy, healing partisan strife, and restoring our good name abroad. And we need to do that by obliterating our short-term memories and short-circuiting our sense of right and wrong.

And that can mean only one thing: We need to investigate those calling for investigations. We need to prosecute them to the fullest extent of the law. We should leave no stone unturned in bringing to justice those lawless thugs seeking justice for past wrongdoing.

We should start with Sen. Patrick Leahy of Vermont, the Senate judiciary chairman, who appears to become more and more fixated on creating a truth commission with every passing week. We need to investigate that guy. What is he hiding? There must be something sinister animating his bloodthirsty desire to see Bush-era lawbreakers brought to justice. Let's assign a special prosecutor and get to the bottom of this.

Ditto re: John Conyers, who chairs the House judiciary committee. Conyers has also introduced a bill that would create a bipartisan commission of inquiry into unlawful actions authorized by the Bush administration. And as Sen. Arlen Specter argued so powerfully last week, why do we need all this truth and inquiry? Isn't it ultimately just going to get in the way of the truth and inquiry?

Then there are all those liberal groups agitating for investigations and prosecutions into war crimes. They all just keep banging on about the need for a public accounting. Um, why shouldn't they be held to account for that? I say the time is now to find out what they're hiding and set some "perjury traps" for them. Let's see how much time they have to demand war crimes prosecutions when they are drowning in a complex inquiry into their own lawless behavior.

Now I know what you're thinking: Where can we find people to spearhead an investigation into those seeking investigations? Doesn't this sort of partisan witch hunt against the partisan witch hunters require a rather specialized set of skills, including a relentless disregard for existing laws and an unwavering certainty that the end justifies the means? Luckily there are a few good men out there who are up to the task. It's been widely reported that Alberto Gonzales, former White House counsel and former attorney general, is looking for work. And it was reported this week that former Vice President Dick Cheney's legal adviser and chief of staff David Addington is also unable to find employment. Doubtless they would be willing to lead an investigation into the lawless cadre of American leaders who seek to investigate the lawless cadre of former American leaders.

In his various memoranda to the president in the weeks after 9/11, professor Yoo proposed the suspension of the Fourth Amendment if the military were to be deployed against suspected terrorists in the United States, as well as the president's right to suspend free speech and a free press if it would make America safer. Yoo continues to urge that if we don't stop pandering to the "anti-war base" and "the chattering classes," America is staring right down the barrel of another imminent terror attack. The time has come to bring this brief era of American openness and transparency to a close. It's time to hold those folks seeking government accountability to account. Let's go after that chattering class once and for all. To do anything less is to practically invite the terrorist menace to attack us once more.


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