Glenn Greenwald has an important post rejecting the claim that holding lawbreakers from this administration accountable is a kind of partisan attack. Leave aside for the moment that a significant number of voters who elected the new President probably chose him precisely to have this kind of accountability, which would mean that part of the reform of our government that many Obama voters expect entails nothing less than investigating and prosecuting officials who committed crimes. Instead, let’s simply consider what a system governed by the rule of law would require. It would require that those suspected of abuses of power, corruption or the commission of crimes under the color of authority be investigated and, if the evidence merited it, prosecuted.
Right now in Taiwan there is some political controversy over the arrest of former President Chen Shui-bian on corruption charges, which his supporters naturally portray as purely political, but there are good reasons to think that Chen may have broken the law and it is appropriate to prosecute him if evidence points to criminal activity. Most Americans cannot conceive of executive branch officials, much less the President himself, having to answer for their crimes, which is one of the reasons why so many members of different administrations, but particularly the current one, have held the law in such contempt–because they know they will not have to answer, much less pay, for what they have done.
This is what the members of the party now headed out of power will probably call “criminalizing policy differences” because there is a frighteningly large number of partisans of the outgoing administration who believe that disputes over interrogation techniques, detainee treatment and illegal surveillance are merely policy disputes about which there are supposedly two equally legitimate positions. Actually, administration defenders probably think that the illegal activities carried out during this administration are more “legitimate,” because they are justified by what Prof. Bacevich has called “the ideology of national security.”
Greenwald is correct that the claim that prosecution of criminals means “criminalizing policy differences” is a strawman, but we can be sure that it is one that we are going to encounter if there is any effort to hold members of this administration accountable. High-ranking members of both parties go along with these sorts of arguments, and invoke the importance of bipartisan cooperation, because there is something that they wish to preserve that is certainly far more important to them than the law, which is the ability of members of both parties to be able to likewise break the law in the future without fear of prosecution. Hiding under the cloak of “national security” is the first response, and when that fails to distract we hear about the importance of unity and comity. Bipartisanship enables the initial illegality through collaboration in creating or acquiescing in the relevant administration decisions, and then it is summoned to cover up for it. In the process, we see that there is no real benefit to be derived from an adversarial party system and the idea of accountable government is revealed to be a joke.
Update: Conor responds:
I find it hard to conceive of throwing Dick Cheney in jail for breaking the law. But I think there is a high-likelihood that a fair investigation would find him guilty of illegal acts, and if that happens I’ll be the first to advocate his prosecution and imprisonment, fully understanding that it’ll be a dark day for the United States — one on which the former vice-president himself will have forced the nation to choose between all the awful effects of throwing him in jailâ€¦ and remaining a country dedicated to the rule of law.
I understand what Conor means, but I think his sentiment at the end has it the wrong way round. The dark day for the United States was the day when members of the executive branch first authorized illegal actions by our government, which we all seem to agree definitely happened. In the event that the officials responsible for these decisions were arrested or found guilty of crimes, that would not be a dark day, but rather the day when the sun has finally started to peak through the clouds of arbitrary and illegal government actions. If high officials have broken the law, the day when they are brought to justice should be considered a very good day indeed. Is it regrettable that these officials created this situation? Of course. What we should never regret or lament is the successul revival of the rule of law that holding such officials accountable would represent. However, it remains to be seen whether such a revival will even be attempted.