A reader writes:
You contrast impeaching a president for perjury in a civil trial with prosecuting a president for war crimes. But there is a key difference between them. An impeachment proceeding is an attempt to remove someone from office. It is not a criminal proceeding whose object it is to put someone behind bars. I would think that is a fundamental difference, don't you?
Incidentally, when President Clinton completed his term in office, his prosecutors elected to offer him leniency, rather than indict him, letting him off with a slap on the wrist, despite physical evidence that, in his capacity as head of the executive branch of government, he had not been truthful under oath. As best I can recall, there were no persistent and obsessive angry recriminations from conservatives outraged that the former president would not have to face the prospect of jail time. As one of those who had favored impeachment, I thought it was the right move, and still do.
As for the former president's supporters, there is a historical reason why the organization Moveon.org chose the moniker "move on." The point was that the controversy had run its course, and it was in the best interest of the country to move forward. Not so much for Clinton's sake, but for ours.
Finally, I would note one other historical precedent that bears mentioning -- the pardoning of Richard Nixon.
That pardon was hugely controversial and was widely viewed as a huge stain that would forever tarnish President Ford. It did, for awhile, at least until the tables had been turned and Democrats had to face the prospect of a Democratic president being impeached. Suddenly, the left had an epiphany on Mr. Ford's act of conscience. The coup de grace came in 2001, shortly after the end of Clinton's term, when Gerald Ford was honored by the Kennedy Library as recipient of the John F. Kennedy Profile in Courage Award. In the words of Caroline Kennedy, in presenting the award:
"As President, he made a controversial decision of conscience to pardon former president Nixon and end the national trauma of Watergate. In doing so, he placed his love of country ahead of his own political future."
Likewise, however misguided you believe the Bush Administration to have been in responding to an unprecedented national emergency, I don't doubt that Mr. Bush thought that he was acting in the best interest of the country. That's my opinion; you are entitled to yours. You can speculate all you like along with your comrades in the echo chambers of the liberal blogosphere that Mr. Bush is a truly evil person who would eat his children for dinner if he could get away with it, but some Americans beg to differ, and a few of us may well end up on a jury pool. Truth be told, we only need one like-minded soul. This is a democracy, you know.
For that reason, I don't believe that you would ever get a unanimous verdict from a jury in favor of the conviction that you are agitating for, unless you limit the pool of prospective jurors to avowed Bush haters like yourself. If you don't believe me, read avowed liberal Richard Cohen's op-ed in today's Washington Post, and ask yourself whether you could get even his vote in favor of conviction.
The issue would not be whether what transpired was torture in a literal sense, but whether it was justifiable or excusable under the circumstances in light of fears of a possible second 9/11. In other words, the reasons for the torture, and the surrounding circumstances very much matter. Still don't believe me? Ask yourself, what is the difference between kidnapping someone, and arresting them and putting behind bars. Don't the police in effect "kidnap" someone whenever they put a person under arrest? It is all about the circumstances, isn't it? Arresting someone is a legal form of kidnapping, an act which is otherwise treated as a felonious crime that is punishable in every jurisdiction. Some of us, at least, are capable of drawing such fine distinctions.
Ironically, if Bush's case ever went to trial, and anguished jurors felt obliged to acquit, you would have perversely created a precedent whereby a president who arguably blatantly violates the law is given a free pass. Bush, at least, had to take into account the prospect of future recriminations somewhere down the road, and that fear of the unknown itself is potentially a useful deterrent to misbehavior. Do you really want to create such a dubious precedent? How much confidence do you have in a conviction, Andrew?
Finally, allow me to quote further from the Kennedy Award Announcement for Mr. Ford, which I believe has continuing resonance today.
"In his autobiography, Ford wrote of the pardon, "I simply was not convinced that the country wanted to see an ex-president behind bars. We are not a vengeful people; forgiveness is one of the roots of the American tradition. And Nixon, in my opinion, had already suffered enormously. His resignation was an implicit admission of guilt, and he would have to carry forever the burden of his disgrace. But I wasn't motivated primarily by sympathy for his plight or by concern over the state of his health. It was the state of the country's health at home and around the world that worried me.
The response from the press, members of Congress, and the general public was overwhelmingly negative. The critics contended that the pardon was premature because it precluded possible indictment that might have led to answers to some of the remaining Watergate questions. Appearing before the U. S. House Committee on the Judiciary, President Ford explained under oath, in the only sworn congressional testimony ever given by a sitting president, that there were no deals connected with the pardon. He said he hoped his action would begin the process of healing the presidency and a deeply wounded nation.
In November 1976, President Ford lost the White House to Jimmy Carter in one of the closest elections in American history. Many historians believe Ford's pardon of Nixon contributed to his defeat. Many have also come to believe that President Ford was the right man at the right time who played a leadership role in helping to restore the American people's trust in their government."
In short, Andrew, it is not about showing mercy, or retribution, for Mr. Bush, or his aides. It is about the rest of us and what is in the best interest of the country. Is the country going to be focussed on Mr. Obama's forward looking agenda, or with settling old scores? The Bush administration is in fact being held accountable in the court of public opinion, as was President Clinton before him. As well he should be. Denounce him as you wish. But some of us simply do not wish to live in an America in which vengeful supporters of a new president seek to put his immediate predecessor behind bars, because believe me, this will not be the last time.
My concern is the precedent. If the precedent is set that a president can assume extra-legal and extra-constitutional powers to seize and detain and torture anyone he deems an "enemy combatant", and an attack occurs in the future, and a future president invokes the Cheney-Bush torture precedent as justification for even more draconian measures, then the constitution is in grave danger. This is obviously a horrible situation to be in - forced between prosecuting former officials and allowing war crimes to stand buttressed by a claim of constitutionality - but it is not the fault of those of us who favor the rule of law. It is Bush's and Cheney's fault - to have both claimed unprecedented powers to break all laws and treaties and to have suspend all requirements to follow the laws on torture and abuse of prisoners.
You and I may be able to move on. Obama will be able to move on. But the constitution will continue to take on water below the surface. And one future president - Giuliani? Palin? - can take us to the next level of executive autocracy.