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.
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: Hmm. This is a tough one for me. Here's a story about the incident, so everyone knows what we're talking about.
Weighing for publication: Obama, at this moment in his life, really can't expect to have a zone of privacy, at least in any public setting. Weighing against publication: It's a prayer! From the Wailing Wall! And Obama said absolutely nothing newsworthy in it. I think I go with no. (Even though I spent yesterday afternoon arguing vociferously that the National Enquirer was right to go ahead with its John Edwards story.)
Austin, Texas: Isn't there a pretty good chance that the next administration (even a Democratic one) will, once in office, decide that unfettered executive power and secrecy aren't actually such a bad thing? After all, power corrupts...
Emily Bazelon: This is a real danger. Presidents, historically, aren't good at giving back power once the office they hold has acquired it. And Congress—the loser when the executive overreaches—isn't good at asserting itself. It's a fractious, not-unified body, by definition. And so I think you're right: We need to watch out for future presidents who turn the excesses of the Bush administration into an accepted norm. When the lines move, and the whole conversation shifts with it, we forget what we stand to lose.
Fairfax, Va.: Do you think the public cares about the Bush administration crimes? If not, is it the fault of the mainstream media's desire to keep people unaware of what is going on in America?
Emily Bazelon: The press and the public are always in a two-way tango. Especially in this day of instant and constant reader feedback, and lots of data about what people read and view (at least on the Web), there is always a back and forth. That said, of course you're right that editors make choices about what to cover and how to play stories. I actually think that the topics we covered in our feature—coercive interrogation, warrantless wiretapping, the destruction of the CIA interrogation tapes, politicized hiring and firing at the Justice Department—have been well-aired in the print media. Lots of ink, lots of Page One. I know less about television, which often matters more. These issues are hard to cover on TV. The pictures often aren't great, the stories can be weedy and complicated, etc. But I don't really think blaming the media, in a blanket way, is the best move in general, though it's certainly a common one. There's a laziness to it, I think—the media are an ever-ripe target, a huge institution that's easy to bash without demanding any real accountability.
Washington: This whole idea is crazy ... Clinton started the policy of rendition—giving suspects to other countries who tortured them. Clinton took payoffs from the Chinese Army in relation to their entrance into the WTO without floating their currency. When Bush came into office in 2000, why didn't he stop the whole government to investigate this stuff? Get over yourselves—this is the real world, not the blogosphere.
Emily Bazelon: You're right that no president has clean hands. But prosecution is by definition a selective beast. The failure to correct past wrongdoing isn't really an excuse for throwing up our hands at every single action taken within the executive branch. Is it?
Arlington, Va.: Will it ever end? And will people be brought to justice?
Emily Bazelon: Well, this administration will end. The tension between civil liberties and national security won't, of course. But maybe the next president won't see international treaties that the U.S. has signed, and laws that we have passed, as optional in quite the way this one has. To me, far more than the question of punishment, what matters is a restoration of the rule of law. That's a lofty sentiment and sentence, and it means different things to different people. But to me it means something very different than the torture memos authored by John Yoo and signed by Jay Bybee (now a sitting federal judge on the Ninth Circuit).
Emily Bazelon: Thanks so much for the great questions, everyone—it's been a pleasure chatting with you. Enjoy the weekend.
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.