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Creating a Lawless Executive Branch

Attorney General John Ashcroft allowed Muslims to be detained under fabricated claims. Will the Obama administration and the right-wing high court protect him?

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From the beginning of his presidency, Obama decided to shield them from the consequences of their crimes. This position was initiated by the President’s "we should look forward" statement in January 2009. In this statement, he made it clear that he did not want to pursue those who had ordered or implemented (in this case) torture under the Bush administration.

When popular pressure forced the President to allow his Attorney General, Eric Holder, to open an investigation of the issue of torture, it was arranged so the inquiry would have no teeth. Publicly and up front we were told that no one would be prosecuted whatever the outcome of the probe.

That is the last anyone has heard of Holder’s investigation of torture American-style. The long and short of this is that the principle set down at Nuremberg, to wit following orders is no excuse for criminal behavior, will not be applied. Nor will giving the orders incur a penalty. The decision to defend Ashcroft’s claim of immunity is in solid accord with this position.
 
The logic of Obama’s position and its likely consequences warrant close examination. If we were to ask the President why he has decided to defend the immunity of alleged criminals who happen to be high government officials, and if he were to be perfectly candid in his reply, here is what he might say:
  
1. President Obama – It would be difficult for a president, or those who carry out his orders, to act freely and as needed if they had always to worry about litigation after the fact. This is particularly true in time of war and emergency.
 
My Reply – This assertion has been made by leaders of states from time immemorial. It is a variation on the raison d’etat argument that has historically allowed all manner of bad behavior under the guise of state interests.

On the other hand, it is true that following the law can prove inconvenient under wartime or emergency conditions. Nonetheless, in the long run, lawlessness is much worse than inconvenience. It is to be noted that, in the American case, appointed and elected high officials (particularly attorney generals!) are sworn to uphold the law, not to transgress it.
 
2. President Obama – While I have stopped the more egregious policies of the Bush administration, I am still responsible for the safety of all American citizens and, in our modern age, I have to be able to use all the methods, high tech and otherwise, to achieve this goal.

Some of these methods might very well prove unconstitutional (warrantless wiretaps, for instance) and yet I must be free to use them because another 9/11 style attack must be prevented. And, if I am to use these methods, then I cannot prosecute those who have done so before me. Otherwise I would be accused of being a hypocrite by my political foes.  
 
My Reply – This argument juxtaposes unattainable 100 percent security against the traditional freedoms that makes America the country its founders intended. Do we want to sacrifice the latter for the illusion of the former?

As James Madison once observed, "The means of defense against foreign danger historically have become instruments of tyranny at home." That is the slippery slope President Obama seems willing to take us down. It also prioritizes the President’s political interests over the Constitution. This latter point of view can be carried further.  
 
3. President Obama – You have to understand, that if I do not do all that is possible, be it constitutional or otherwise, to protect the nation I put myself in mortal political danger. I open myself to the accusation by my political rivals that I am "soft" on security or terrorism. And, if something does happen, such as another terrorist attack, then I am politically dead.
 
My Reply – Well, yes, this is so. However, what is also true is that prioritizing politics above law always leads us in the direction of corruption, or worse. By defending Ashcroft isn’t President Obama saying it is all right to break the law if you are highly placed and so lacking in imagination that you cannot figure out a legal way of dealing with an emergency?

 
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