Democratic complicity and what "politicizing justice" really means

Trying to block criminal investigations for political reasons is itself a form of corruption.

Published April 24, 2009 12:01PM (EDT)

(updated below)

Bush-defending opponents of investigations and prosecutions think they've discovered a trump card:  the claim that Democratic leaders such as Nancy Pelosi, Jay Rockefeller and Jane Harman were briefed on the torture programs and assented to them.  The core assumption here -- shared by most establishment pundits -- is that the call for criminal investigations is nothing more than a partisan-driven desire to harm Republicans and Bush officials ("retribution"), and if they can show that some Democratic officials might be swept up in the inquiry, then, they assume, that will motivate investigation proponents to think twice.

Those who make that argument are clearly projecting.  They view everything in partisan and political terms -- it's why virtually all media discussions are about what David Gregory calls "the politics of the torture debate" rather than the substantive issues surrounding these serious crimes -- and they are thus incapable of understanding that not everyone is burdened by the same sad affliction that plagues them.  

Most people who have spent the last several years (rather than the last several weeks) vehemently objecting to the Bush administration's rampant criminality have been well aware of, and quite vocal about, the pervasive complicity of many key Democrats in this criminality.  Just to cite two examples, here is my December, 2007 post entitled "Democratic complicity in Bush's torture regime", and here is another from July, 2008, arguing that Democrats have blocked investigations into Bush crimes because of how it would implicate them; quoting The New Yorker's Jane Mayer as saying that "many of those who might ordinarily be counted on to lead the charge are themselves compromised"; and quoting Jonathan Turley as saying (on Keith Olbermann's program) that "the Democrats have been silently trying to kill any effort to hold anyone accountable because that list could very well include some of their own members."  

The reality is exactly the opposite (as usual) of what is being depicted in our media discussions.  The call for criminal investigations of torture and other forms of government criminality is the most apolitical and non-partisan argument one can make.  The ones who are trying to politicize the justice system and exploit the rule of law for partisan gain are those who are arguing against criminal investigations.  John Cole explained this point perfectly yesterday:

At some point they are going to figure out that for most of us, we don’t care if the person has a (R) or (D) behind their name when they were instituting a policy of torture.  That is what is so depressing (to me, at least) about the Ari Fleischer’s and the Thiessen’s of the world. They honestly seem to think this is nothing more than a partisan witch-hunt, the same old Washington gotcha politics. It isn’t. When you torture people, you have crossed a really clear line. Innocent people are dead. Lives have been ruined. Our international reputation has been destroyed. Yes, the Bush administration will get most of the blame, but that is because they were in charge and they did this, not because of what party they happen to belong to. If Jane Harman and Nancy Pelosi knew about this and ok’d it, they are just as culpable.

Precisely.  To be fair, there are disputes about what exactly Democratic leaders were and were not told, and there are disputes about what they said or did not say.  That's what happens when a government operates in virtually total secrecy and does everything possible to stonewall public disclosure.  The dispute over the role of Democratic leaders further bolsters the need for full-scale investigations:  we ought to know everything that led to these crimes, including the true extent to which the "opposition party" was informed about what was being done and approved of it.  The failure of the Democratic Party to meaningfully oppose what was done over the last eight years is a crucial part of the story here and light needs to be shined on that as much as anything else.  I don't know of a single person who has devoted themselves to arguing for investigations who contests that fact.

The inability of so many people (both Republicans and Obama-loyal Democrats) to view the need for prosecutions independent of political considerations is a potent sign of how sick our political culture has become.  The need for criminal investigations is motivated by one simple, consummately apolitical fact:  serious and brutal crimes were committed at the highest levels of the government, ones that left a trail of many victims.  A country that purports to live under the rule of law has no choice but to treat its most powerful members who commit serious crimes exactly the same as ordinary citizens who do so.  That has nothing to do with Republicans or Democrats. 

It has to do with the most central premise of the American system of government:  that we are a nation of laws, not men, and all are equal before the law.  People like John McCain argue that only "banana republics" prosecute former political leaders, but the reality is exactly the opposite.  As the Western world has spent decades pointing out, the hallmark of an under-developed, tyrannical society is the very same premise we have embraced:  that political elites are free to break the law with impunity and never suffer the consequences that ordinary citizens do.

* * * * *

Interestingly -- and encouragingly -- the potency of this principle is such that a call for criminal investigations is now slowly though clearly starting to seep into our mainstream discussions.  In The New York Times, Paul Krugman today emphatically calls for criminal investigations, mocking Obama supporters who claim that applying the rule of law will unduly interfere with Obama's political agenda and pointing out that prosecutions are needed "not out of vindictiveness, but because this is a nation of laws."  In The Washington Post today, the now-Pulitzer-Prize-winning Eugene Robinson echoes this argument:

The many roads of inquiry into the Bush administration's abusive "interrogation techniques" all lead to one stubborn, inconvenient fact: Torture is not just immoral but also illegal. This means that once we learn the whole truth, the law will oblige us to act on it. . . . The rule of law is one of this nation's founding principles. It's not optional. Our laws against torture demand to be obeyed -- and demand to be enforced.

That torture is a serious felony certainly is a "stubborn, inconvenient fact."  Even the Bush-enabling Washington Post Editorial Page today points out that "American officials condoned and conducted torture"; "Eric H. Holder Jr., the attorney general of the United States, has stated flatly that it is illegal"; and "in a country founded on the rule of law, a president can't sweep criminality away for political reasons, even the most noble."  I hope Obama loyalists study that last sentence and digest it.

As Andrew Sullivan hinted at last night, my claim yesterday that not a single "establishment pundit" has been advocating criminal investigations was a bit overstated -- Rachel Maddow and Keith Olbermann have been admirably banging this drum on MSNBC for weeks (and Sullivan for much longer than that) -- but a simple, non-partisan call to apply the rule of law to our government leaders was largely missing from most mainstream discussions, until now.  As torture disclosures increase -- the ACLU yesterday announced that it has forced the DOD to agree to release many new photos showing American abuses of detainees outside of Abu Ghraib -- the pressure is clearly rising for criminal investigations.

* * * * *

Nonetheless, as they have done for years, Democratic leaders continue to lead the way in shielding Bush crimes from scrutiny and stifling public disclosure of what was done.  Obama met yesterday with Congressional leaders and emphatically argued against the establishment of a Truth Commission, insisting that such an inquiry would interfere with his political agenda.  Senate Majority "Leader" Harry Reid then dutifully and obediently announced that Senate Democrats will block any such investigations in favor of a Senate Intelligence Committee proceeding that will occur largely in secret and will not be completed until the end of the year, at least (I remember when Democrats used to mock GOP leaders for having Dick Cheney come to Congress and give them their marching orders).  Democratic Congressional leaders are doing now what they did throughout the Bush presidency:  namely, pretending to oppose what was done while doing everything possible to protect and enable it and shield the wrongdoers from scrutiny (in large part because some of the wrongdoing was by their own party).

Obama's ostensible motives here are no better.  The claim that punishing Bush crimes will undermine his political interests is not only false (as Krugman definitively establishes today) but also corrupt.  Democrats spent the last several years vehemently complaining about the "politicization of the Justice Department" under Alberto Gonzales.  Yet so many of these same Democrats are now demanding that the Obama DOJ refrain from prosecuting Bush criminals based on purely political grounds:  namely, that those prosecutions will interfere with Obama's political agenda. 

Blocking criminal investigations for political reasons is definitively corrupt -- period.  That's true whether Democrats or Republicans do it.  In The New York Times today, Mark Mazzetti and Neil Lewis advance the Jane-Harman/Alberto-Gonzales/AIPAC scandal by making clear that at the core of the scandal lies the actions of Alberto Gonzeles, who intervened to block a criminal investigation of Harman for purely political reasons:

One reason Mr. Gonzales intervened, the former officials said, was to protect Ms. Harman because they saw her as a valuable administration ally in urging The New York Times not to publish an article about the National Security Agency’s program of wiretapping without warrants.

As Michael Isikoff pointed out on Rachel Maddow's show earlier this week, what Gonzales did there (blocking a criminal investigation of Harman because the investigation would undermine the White House's political interests) is extremely similar to what many Obama loyalists are arguing now (that criminal investigations of Bush crimes should be blocked because such investigations would undermine the White House's political interests).  That is what made the efforts of Rahm Emanuel, Robert Gibbs and even Obama to dictate who would and would not be prosecuted so improper:  it the role of independent Justice Department officials to make that decision based on purely legal and apolitical grounds, not the role of White House officials to try to interfere for political reasons.  I was preceded yesterday on Warren Olney's To the Point program by Philip Zelikow, and Zelikow said:  "I really don't think the President should have opinions on who should or should not be prosecuted -- full stop."

Punishing politically powerful criminals is about vindicating the rule of law.  Partisan and political considerations should play no role in it.  It is opponents of investigations and prosecutions who are being driven by partisan allegiances and a desire to advance their political interests.  By contrast, proponents of investigations are seeking to vindicate the most apolitical yet crucial principle of our system of government: that we are a nation of laws that cannot allow extremely serious crimes to be swept under the rug for political reasons.  That's true no matter what is best for Obama's political goals and no matter how many Democrats end up being implicated -- ethically, politically or even legally -- by the crimes that were committed.


UPDATE:  Just to underscore how continuously Democrats are complicit in thwarting the rule of law in the United States:   one of Obama's most impressive and rule-of-law-defending appointees, Dawn Johnsen, has had her nomination as OLC Chief blocked for months by the Right, and the office of a key Democratic Senator -- Ben Nelson -- just told Greg Sargent that Nelson "is all but certain to vote against Johnsen," substantially increasingly the GOP's chances of preventing her from becoming head of the OLC.  That's our bipartisan Washington establishment in a nutshell:  key Bush torture architects such as John Rizzo and Bush intelligence policy defenders such as John Brennan are able to remain in positions of high power in the Obama administration, while those, like Johnsen, who want accountability for government crimes are considered fringe, extremist and unfit for office.

By Glenn Greenwald

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