Oughta Be a Crime
Emily Bazelon takes readers' questions on the legal case against members of the Bush administration.
Senior editor Emily Bazelon was online on Washingtonpost.com to chat about Slate's project to examine who in the Bush administration may be responsible for its potentially unlawful policies—warrantless wiretapping, coercive interrogation, Department of Justice hiring and firing practices, and destruction of CIA videotapes—and how likely criminal charges are for each figure.
Fairfax, Va.: I heard Keith Olbermann saying a few nights ago that Obama, as president, was not going to go after team Bush members responsible for crimes against the Constitution and other impeachable offenses. Is that correct? If so, is it too late for open rebellion at the convention in an effort to put a real progressive into the nominee slot? If it is too late, isn't it time for a serious effort to build a third party before another Republican term takes us over the edge into undeniable fascism?
Emily Bazelon: I don't think we know yet what Obama will do. But investigations are a tricky business. Some have already begun, specifically, into the destruction of the CIA tapes of the interrogations of two high-level al-Qaida suspects. But broad fishing expeditions could take up a huge amount of time and become a big distraction. The question is how to target and frame, I think.
Washington—Immunities Question: To what degree is the administration (and its soon-to-be-former officials) relying on post-U.S. v. Nixon case law, which the administration believes will cause status-immunity to attach to effectively all presidential personnel and appointees? Aren't the immunities (both from prosecution and from civil discovery) attached only to the president and immediate personnel, and then only in connection with official acts undertaken in good faith?
Emily Bazelon: You're right that the Bush administration has an extremely broad view of immunity and privilege, one that I agree doesn't come straight out of U.S. v. Nixon. The Bush view is essentially that any communication in the executive branch that's related to advice that could at some point go to the president is covered. I don't see a precedent for that; on the other hand, there's a dearth of rulings that clearly point in the opposite direction.
Ottawa, Ontario: With this administration's pattern of rewriting laws to suit their purposes, and a public seemingly willing to give them a pass on issue after issue, is there any credible reason to believe any senior administration officials really will be brought up on charges, much less serve any time?
Emily Bazelon: I don't think this administration is going to open new investigations. But the ones that have been opened, in the Justice Department, are being run by credible prosecutors. I would hope that if they find evidence of serious lawbreaking, we will hear about it, and there will be a debate about indictments. Or else that debate will happen internally, on the theory that if prosecutors don't have enough to indict, they don't go around smearing people. In any case, the clock is obviously running out, so a new president will likely be in charge as some of these decisions are made.
St. Simons Island, Ga.: Ms. Bazelon, you are terrific! I very much appreciate your column in Slate and would like to see your columns appear more often in the Washington Post for a broader readership. As to the question of charges against those in the administration, in my view that begs the real question: Are we in fact in a state of war? If we are at war, then the executive will not be denied extraordinary powers and those in the administration will not be held accountable for mistakes made in the heat of war.
If we are not at war, then the executive will be denied extraordinary powers, and those in the administration will have no defense for violations of the law. Congress put its imprimatur on war, so in my view Congress cannot now complain about administrative lawlessness in pursuit of victory in that war. On the other hand, one need not be Bruce Fein to recognize how absurd the very concept of being at war with "terror" is.
Emily Bazelon: Thanks, that's very nice of you. Your question is of course a pertinent one. The Supreme Court grappled with it in some of the early Guantanamo cases, and said, essentially, that a state of war could exist without a clear end point. But can that go on forever? Is it really still going on, in a concrete way?
Falls Church, Va.: Criminalization of politics is like riding a tiger, isn't it? You can't get off. Each successive Congress or administration will go after the previous one. Let me ask, do you support prosecutions of Clinton administration figures for indefinite detention of Haitians in Guantanamo? For killing 500,000 Iraqi children (according to UNICEF) with pre-war sanctions? For killing thousands of Sudanese (according to the EU) by blowing up Sudan's only pharmaceutical factory on the basis of fraudulent intelligence? Or is this just politics by other means for you?
Emily Bazelon: You have put your finger on a very difficult issue. When does an investigation become a witch hunt? When is it simply a waste of resources? In the Slate feature, we were careful to say that in many cases, prosecutions were unlikely—for breaches of the Geneva Convention, i.e., war crimes, and for warrantless wiretapping. On the other hand, in my view if you have a concrete and identifiable instance of what appears to be lawbreaking—like the destruction of CIA tapes that judges and the 9/11 commission had asked for—then you do expend resources to get to the bottom of who did what, and with what intent. And then you make a call about whether or not to prosecute. That, I think, is why Attorney General Michael Mukasey asked John Durham of the U.S. Attorney's office in Connecticut to open a criminal investigation on this topic. There are some forms of lawbreaking that go beyond partisan revenge, if there is solid evidence of them. Right?
Menomonie, Wis.: Good morning. I like the idea of a truth-and-reconciliation commission. If I were in a position of power, I would be willing to grant all immunity if they just told the truth. This has worked in Rwanda and Bosnia. Granted, the United States is not Rwanda or Bosnia, but I think it could work here. All I care about is America knowing the truth. I also find it unlikely that we will know the truth if those involved realize they may be facing sedition, treason or war crimes charges. What are your thoughts? Thank you.
Emily Bazelon: I'm sympathetic to your point of view. We have a pretty good recent homegrown example, too—the 9/11 Commission. The benefit is the wealth of information, and the lessons that can be drawn from retracting the path of failure. The downside, of course, is that you diminish the potential to deter future illegal behavior by removing the threat of punishment. But in the case of the CIA's coercive interrogations, and the Department of Justice legal opinions that authorized the tactics used, a truth-seeking commission may be the way to go.
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.