Oughta Be a Crime
Emily Bazelon takes readers' questions on the legal case against members of the Bush administration.
New York: It's a bit longer than a sound bite, but don't you think every American should be required to pass an exam on the administration's arguments in the Padilla case? The administration argued it had the right to arrest a U.S. citizen on U.S. soil and detain him without charge, without notifying his family and without giving him access to a lawyer, for as long as the administration desired. By definition, this is treason—an organized conspiracy against the Constitution.
Emily Bazelon: The government's position on Padilla is indeed extreme, from a civil liberties perspective. And now, in the Al-Marri case, we have a second detainee being held as an enemy combatant on U.S. soil. That case will reach the Supreme Court—the question will be whether the justices take it, or allow the ruling of a divided Fourth Circuit to stand.
Chicago: I think we know what Obama would do: nothing. He's a healer, a bridger of differences, a reacher-across-the-aisle. Don't you think his advisor Cass Sunstein was telegraphing (or just stating) exactly that when he said that prosecuting Bush administration officials for wrongdoing was a bad idea because it would create a cycle of criminalizing policy differences?
Emily Bazelon: I can certainly see why you would think that, and yes, that is Sunstein's view. He's not Obama's only legal advisor, however. And as I said before, there's a difference between a criminal investigation between an easily identifiable harm, and one for a giant policy shift, like the Guantanamo interrogations.
Chicago: Will Bush pardon Novak so he can get rid of that pesky $50 citation for the felony hit-and-run?
Emily Bazelon: That would be some serious queue jumping, given how long the pardon line is!
Detroit: Hi. From the news you know that my own city has its share of political problems recently! What comes around goes around. ... My question is, how can you forget about Cheney's assault on record-keeping? Didn't he refuse the long-standing tradition of record-keeping with NARA? Thank you!
Emily Bazelon: Yes, Cheney has his own very particular view of the record-keeping function of the vice president's office. To me it seems pretty unsupportable, frankly. Here's a link to a Newsweek interview with the National Archives director caught in the crossfire.
Mt. Lebanon, Pa.: Are you watching the live Impeachment hearing that isn't on C-SPAN 3 at this time? A representative from New York's 22nd District just accused former Secretary of Defense Donald Rumsfeld of allowing Osama bin Laden to escape from Tora Bora. The congressman's contention is that Rumsfeld knew that if bin Laden were captured in Afghanistan, the case for the Bush war in Iraq would be much, much harder to make. My own take: Even to an inattentive and gullible American public. If true, would Rumsfeld's action be construed legally as treason in time of war? If so, what is the penalty prescribed by law? Thanks much.
Emily Bazelon: This seems, with all due respect to the member of Congress who said it, to be an irresponsible charge to float out there without some very hard evidence.
San Francisco: What factors will determine whether these potential crimes and misdemeanors become real crimes and misdemeanors? How long before we see anything actually go to court?
Emily Bazelon: A couple of layers here. On the legal front, we are waiting for the evidence-gathering that criminal investigators like Durham are doing. Also the work of the inspector general at the Department of Justice. Then there's the Office of Professional Responsibility. It's within the dept, which means its head answers to AG Mukasey. The big question there is whether all its findings will be made public. All of these pending reports are crucial; when we know what they say, we'll be in a much better position to evaluate whether any indictments are feasible and justified.
Then, of course, there are the political considerations we've been discussing. Would a President Obama prefer in general to let bygones be bygones? Would a President McCain want to protect a previous administration of his own party?
Fairfax County, Va.: Emily, I realize this is off-topic, but I would value your journalistic perspective as an editor because you are available to us today. Would you have published the text of Obama's prayer, stolen from the Wailing Wall by a religious student? (I think the editor at a minimum should have published that student's name, so he could be expelled.) Would you re-publish it now, as so many outlets have?
Emily Bazelon writes about law and family and edits the Slate's Medical Examiner and Jurisprudence columns. She previously worked as an editor and writer at Legal Affairs magazine and as a law clerk on the U.S. Court of Appeals for the 1st Circuit.