Principle vs. Pragmatism at Justice
There has been a steady tension in the executive branch since Barack Obama took office between the principle of prosecuting what have become obvious crimes committed by the previous administration and the pragmatic political effects of such a prosecution on the president's agenda. It's an unfortunate reality of polarized Washington that a prosecution will be played by Republicans as a blatantly political act, and in an administration that is still seeking to work with Republicans on Capitol Hill, that act would likely poison the waters and finish off any semblance of cooperation.
So far, it seems that the pragmatic imperatives of passing the ambitious and incredibly important agenda that Obama has set forth (attempting to deal with health care, energy policy, education, and the economy all at once would be no mean feat even if the Republican party hadn't decided its narrow political interests would be best served by doing everything they could to wreck his plans). At several turns, the administration has come down on the side of at least deferring, if not completely ignoring the crimes they should by rights be at least investigating, and probably eventually prosecuting.
This has been a source of considerable frustration for those of Obama's supporters who wanted the president to add one more task to his plate, that of moving the USA back toward being a constitutional democracy which holds the bill of rights as a sacred document.
I'm one of those supporters, and I realize that this post's assumption of the prior administration's guilt sounds a little like the old western movie line about how "we're going to give you a fair trial, followed by a fist class hangin'", but it really isn't. At several points, officials of the previous administration have admitted openly that they committed acts which by any fair reading are violations of both US and international law. They assert (on the basis of very little evidence) that the national security interests of the country were served by doing so, and that they were empowered to break US law by their constitutional mandate, but most constitutional scholars have dismissed that as a wholly specious claim.
What remains is to see if that claim carries any more weight in court than it does in the academy, and to establish who was involved in making the decisions to carry out such acts as torturing people, detaining them indefinitely without a hearing, invading the privacy of American citizens without any restrictions, misinforming Congress about all of the above, and a variety of other crimes and misdemeanors. So far, the administration has been moving very slowly to investigate those matters and act on what they find, and the frustration about that pace that's welling up among those who hold the Constitution dear isn't because we don't understand that there may be a cost to pressing forward with investigations, it's because we think that cost will be worth paying to preserve what we hold dear about our country.
For some of us (myself included), it's also a matter of practical political calculation. If Democrats don't stand up for principle in this case, Republican policymakers will have no reason to respect either the law or their opposition, and the voters who have to choose from among them will have no reason to respect Democrats' spines either. If the voters don't believe Democrats will stand up for principle, they won't trust them to make policy, and the sacrifice of principle for pragmatic political considerations will have been wasted.
All of which is why I was very heartened to read this Newsweek piece by Daniel Klaidman, which describes the dilemma being wrestled with by Attorney General Eric Holder. Holder too is mindful of what the effort to investigate might cost, and is suitably worried about endangering all that the Obama administration needs to accomplish. Fortunately, he has apparently also been as aware of the damage the previous administration did to the rule of law, and has enough respect for that rule to find it unpalatable to let that damage go unremarked.
The irony here is that if an investigation is to go forward (and it should), the best practice will be for it to proceed as speedily and independently as it can; to quote Lady Macbeth, "If t'were done, t'were best done quickly." (another irony may be quoting Lady Macbeth in a post about the excesses of state power, but I digress...) The more the administration is seen to be agonizing over this decision, rather than letting the law take it's course, the easier it is to paint the whole thing as a political exercise, something the Republicans will attempt to do regardless.
In addition, it has become clear that the Republican leadership is committed to a course of obstructionism that makes it a fool's errand to keep going hat in hand to the minority to try to develop a governing consensus. They're just not that into you (or governing, something that should come as no surprise to anyone who has lived through the last eight years). The good news is that their posture, in it's current form, looks to be wholly self-destructive, and is being carried out by a cavalcade of clowns that make the hapless Washington Generals seem like the Harlem Globetrotters the Generals made a living by losing to in embarrassing fashion. These guys aren't just the gang that can't shoot straight, they are shooting themselves and each other at a furious pace.
Principle's cost is declining daily as the revelations get worse, and it looks like AG Holder may be ready to pull the trigger on doing his job. It can't happen soon enough, and if it's explained as a matter of letting the law take it's course, I don't think the cost will be as high as leaving the crimes uninvestigated. I hear that, like Obama, Holder likes a game of basketball. Time for a full court press, General.
