With many Democrats still fuming over the refusal of Democratic leaders like Speaker Nancy Pelosi to allow even impeachment hearings into detailed allegations of crimes by President Bush in office, close Obama adviser (and University of Chicago Law Professor) Cass Sunstein recently rejected the notion of prosecuting Bush officials for crimes such as torture and unlawful surveillance. After Sen. Obama’s unpopular vote on the FISA bill, it has triggered a blogger backlash — raising questions about the commitment of the Democrats to do anything other than taking office and reaping the benefits of power.
The exchange with Sunstein was detailed by The Nation’s Ari Melber. Melber wrote that Sunstein rejected any such prosecution:
Prosecuting government officials risks a “cycle” of criminalizing public service, [Sunstein] argued, and Democrats should avoid replicating retributive efforts like the impeachment of President Clinton — or even the “slight appearance” of it.
Sunstein did add that “egregious crimes should not be ignored,” according to one site, click here. It is entirely unclear what that means since some of us take the views that any crimes committed by the government are egregious. Those non-egregious crimes are precisely what worries many lawyers who were looking for a simple commitment to prosecute crimes committed by the government.
We will have to wait for a further response from Sunstein, but liberal groups are up in arms given his close association with Sen. Obama.
Sunstein and I were on opposite sides on the Clinton impeachment. While I voted for Clinton and came from a well-known democratic family in Chicago, I believe (and still believed) that Clinton was rightfully impeached for lying under oath. One of the objections that I made in an academic writing at the time was that some professors seemed to accept that Clinton did commit perjury but argued that it should not have been prosecuted as an impeachable offense — or a criminal offense. As with the current controversy, many argued that some crimes could be prosecuted while others tolerated or excused. It was the same egregious versus non-egregious distinction. Obviously, it could be argued that perjury is not an impeachable offense — though I strongly disagree with this view. However, many also opposed any criminal prosecution in the Clinton case. At the time, many cited the dangers to the presidency in such cases as raising the appearance of political prosecutions (much like the current rationale with Bush). I view the dangers as far worse when you fail to act in the face of a crime committed by a president, even one who I supported. I feel equally strongly that President Bush should be subject to impeachment based on the commission of the crimes of torture and unlawful surveillance.
The main concern with Sunstein’s reported comment is how well they fit within the obvious strategy of the Democratic party leaders: to block any prosecution of either President Bush or his aides for crimes while running on those crimes to maintain and expand their power in Washington. The missing component in this political calculus is, of course, a modicum of principle.
This was the subject of my countdown discussion this week, click here.
Here’s the problem about “avoiding appearances.” There seems ample evidence of crimes committed by this Administration, in my view. To avoid appearances would require avoiding acknowledgment of those alleged crimes: precisely what Attorney General Mukasey has been doing by refusing to answer simple legal questions about waterboarding.
How about this for an alternative? We will prosecute any criminal conduct that we find in any administration, including our own. Now, that doesn’t seem so hard. There is no sophistication or finesse needed. One need only to commit to carry out the rule of law.
The combination of Obama’s vote to retroactively grant immunity for the telecoms and Sunstein’s comments are an obvious cause for alarm. We have had almost eight years of legal relativism by both parties. For a prior column on the danger of relativism in presidents, click here A little moral clarity would be a welcomed change.
For further discussion of the Sunstein statements, click here and here.
I’d be inclined to acknowledge with you on this. Which is not something I typically do! I enjoy reading a post that will make people think. Also, thanks for allowing me to speak my mind!
A Harvard College classmate of Cass Sunstein, whom he knew personally very well at Harvard at their Currier House dormitory, where they often ate dinner together, is a political refugee from the US in Belgium, a victim of death threats by friends of George Bush and US federal judges named in court filings as guilty of fraud and extortion and other crimes.
There are legal cases in process in Belgium, regarding the US threats of murder against Cass Sunstein’s classmate, and how the US judges are even ordering the victim’s websites blocked from Google in order to help US agents murder Sunstein’s classmate in Belgium.
Loyal to all corruption of the US government and Bush’s friends, Cass Sunstein is refusing to answer questions from journalists about the case, and refusing to respond to any communications from his Harvard College classmate either.
Details here – with links to other articles, see especially, ‘Two EU Writers Under Threat of Murder’:
http://about-les-sachs.angelfire.com/
The agonizing dilemma we constantly have to confront is that those people who gravitate toward the centers of power in any society are precisely the people to whom we should never delegate power. I’m a senior who has gone through life pondering this problem and have yet to come up with a workable solution to what seems to be an eternal curse.
Here’s another one! From the Electronic Frontier Foundation today:
“San Francisco – On Tuesday, December 2, at 10 a.m., the Electronic Frontier Foundation (EFF) will challenge the constitutionality of a federal law aimed at granting immunity to telecommunications companies participating in illegal domestic surveillance.
At Tuesday’s hearing, EFF will argue that the flawed FISA Amendments Act (FAA) improperly attempts to take away Americans’ claims arising out of the First and Fourth Amendments, violates the federal government’s separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law. Signed by President Bush earlier this year, the FAA allows for the dismissal of the lawsuits over the telecoms’ participation in the warrantless surveillance program if the government secretly certifies to the court that the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court in September and is demanding that the cases be dismissed.
EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency. EFF has been appointed co-coordinating counsel along with the American Civil Liberties Union (ACLU) for all 46 outstanding lawsuits concerning the government’s warrantless surveillance program.”
Sunstein: “Prosecuting government officials risks a “cycle” of criminalizing public service, [Sunstein] argued, and Democrats should avoid replicating retributive efforts like the impeachment of President Clinton — or even the “slight appearance” of it.”Sunstein did add that “egregious crimes should not be ignored….”
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I think Cass Sunstein must even now be canceling his subscription to the Washington Post following the guest commentary written by a Air Force special ops interrogator with the pseudonym “Matthew Alexander.” According to Alexander, who promoted more successful alternatives to torture in 2006, “[t]orture and abuse cost American lives. I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It’s no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me — unless you don’t count American soldiers as Americans.”
I could not have written a better indictment for Bybee, Yoo, Bush et als. than this one. If Cass Sunstein demands compelling evidence of egregiousness before doing the right thing let him begin here.
Andrew Wang:
You’re about 8 years too late with that statement.
Bush is the worst president in American history. Bush facilitated the 9/11 attacks. Subsequently, Bush lied to Congress and the American people relative to the reasons for invading Iraq. Bush purposefully misled Congress and the American people. Then, Bush murdered more than 4,000 United States service members. And Bush wounded more than 30,000 United States service members. In torturing prisoners of war, Bush patently violated the Geneva Convention. Bush unlawfully wiretapped United States citizens. In using “signing statements” to challenge hundreds of laws passed by Congress, Bush violated the Constitution. Bush has ignored global warming. Bush is guilty of criminal negligence relative to the response to Hurricane Katrina. Bush disobeys our democratic values and Constitution. Bush is a disgrace to the United States.
Bush should be prosecuted for war crimes.
Submitted by Andrew Yu-Jen Wang
B.S., Summa Cum Laude, 1996
Messiah College, Grantham, PA
A portion of the legal basis of this discussion appears to revolve around the concept of “scope of employment” and when a government official can be held to legal account for violating this principle. If every action, legal or not is covered by the color of the official acting within the scope of his or her employment then any criminal activity is legitimized if it is engaged in while employed by the government and acting however loosely within the scope of those duties.