Senator Dianne Feinstein (D-CA), in response to the issue of potential legal actions against the Bush administration’s for violations of the U.S, Constitution, wrote:
“Thank you for your letter concerning impeachment proceedings against President George W. Bush and his authority to grant pardons. I appreciate the time you took to write and welcome the opportunity to respond. I believe we are at a point in time where partisan politics and divisions within our country must come to an end.” [Private correspondence: 12/1/08].
Many commentators have suggested that the Bush administration may issue pardons to parties who may be at legal risk for actions relating to constitutional violations, including “harsh interrogation”–read: torture. As far-fetched as it may seem to advocate his [Bush’s] impeachment during an interregnum period, note that the incoming Obama administration has all but ruled out an investigation of such crimes. The only other avenue to address criminal liability of the Bush administration–prior to its departure–would be support of H.R. 1531, the bill by Rep. Jerrold Nadler (D-NY) that urges Congress to address the potential Bush pardons in the political arena.
Given the immediacy of such issues as the economy, the war, the financial crisis, and other pressing concerns–cited by Feinstein in her letter–human rights and constitutional matters likely will not only be deferred, but that doing so will be both a politically safe, as well as a relatively popular, decision. Inevitably, neither impeachment nor legislative inquiries on potential Bush pardons will be enacted. Thus, the final political recourse would await a decision of the Obama administration or Congress once he takes office.
The most likely proposals to address such crimes would involve the appointment of a commission of inquiry, either at the presidential or congressional level. If one thinks of South Africa’s Truth and Reconciliation commission, the expectations become more evident. In general, society foregoes criminal prosecution of brutal criminal acts to obtain an accounting of the crimes. The trade-off is expected to permit some form of civil order or some semblance of democracy in return. In practice, this means that political elites go unpunished in exchange for ordinary citizens merely being able to learn, publicly, the crimes that their leaders have perpetrated. This, however, is not entirely inconsequential. People do, at least, learn the truth, previously hidden from view. Moreover, the legal system may occasionally invalidate the previous immunity from prosecution if the political climate changes, as was the case in Chile. To gain a better appreciation of how such a commission of inquiry might work, we need to look more closely at the legal system.
At the legal level, it may be instructive to begin with a consideration of what other nations have done when open attacks on constitutional rights were violated. In Pakistan, attorneys took to the streets, en masse, to protest. In the U.S., it was an entirely different story. As Scott Horton of Harpers Magazine has observed, the Bush administration “waged war against the law itself.” Yet, American attorneys, he recounts, responded to a clearly illegal surveillance program with threats, but not with action. “[V]irtually the entire senior echelon of the Justice Department threatened to [but did not in fact] tender their resignations over it” (p. 49, Emphasis added). Moreover, “so many high-level figures at Justice were involved in creating the legal mechanism for torture that the Justice Department has effectively disqualified itself as an investigative vehicle, even under a new administration.” (p. 55). [Emphasis added]. Moreover, Obama, himself a constitutional law professor, eventually concluded that retroactive immunity for illegal wiretapping under the FISA law was permissible. These and other examples make it evident that securing prosecutions of illegal actions by either government or corporate executives may well be problematic in the coming years.
On August 9, 1974, Gerald Ford assumed the office of the president of the United States after the resignation of former-president Richard Nixon, whom he then pardoned on September 8, 1974. Upon assuming office he stated: “ My fellow Americans, our long national nightmare is over.” While this decision brought a measure of civic tranquility, it also assured that future leaders could expect to game the system so that no legal penalties for crimes committed while in office would ensue. Although it could be argued that President Ford, as well as his party, had to pay a political price—since his pardon of Nixon may have cost him his re-election—violating the Constitution hardly seems to have been a deterrent to later political administrations.
It has been said that Americans care more about order than we do about law, and more about law than we do about justice. It remains to be seen how long can we continue to defer our claim to democracy while “kicking the can down the road,” giving political and corporate criminals get-out-of-jail free cards. It invites contempt for the law as well as for our form of government, whether it is considered a republic or what some continue to believe is still some kind of democracy. And so, I ask:
Is our long national nightmare over, or about to begin again? To paraphrase the Irish poet, James Joyce: “Will U.S. history be a nightmare from which we must now try to awake? ”
Wake me when it’s over.
Gene Rothman, DSW, LCSW, is a retired social worker who worked with homeless and incarcerated veterans in the latter part of his career. He is active with Progressive Democrats of Los Angeles (PDLA) and Families to Amend Three Strikes (FACTS), and writes an occasional monthly editorial for the Social Action/Social Justice Council published in the “NASW California News.”