Tuesday, February 24, 2009

What Would You Suggest?

There is growing demand for accountability from the prior [mal]administration. Congress is finally hinting that it may investigate the Bush policies of the past and assess whether charges should be preferred. After the spectacular failures, missteps and overextension of authority and expenditures, something surely needs to be done.

But apparently not everyone thinks that accountability is a valuable component to public service.

David Rivkin and Lee Casey have penned a remarkable opinion (on TBO.com and credited as published in the Washington Post though it does not appear in that publication) claiming that an investigation such as those being considered is harmful to US institutions. Titled "Pouring Acid On Democracy," the article details consequences such as international criminal prosecution for those indicted by the proposed inquiries, and claims that the investigations would be counter to US democratic processes and theory of government.

The article goes to great lengths to imply broadly that the investigations are bad and should not be allowed to proceed. The authors invoke two demons: international prosecution and the legal circus of the special investigation. Yet they make little mention of the causes for public concern here, and their twin terrors have proven remarkably toothless.

The article makes absolutely no mention of what the authors would consider appropriate processes to address the horrific record of the Bush administration. There is no mention of conventional investigation, available legal processes or indeed any remedy of any kind. Apparently the authors think we're all better off simply forgetting the last eight years and moving forward, allowing the precedents set to stand unchallenged.

International criminal proceedings against those found culpable is a clear fear the authors share. Yet the International Criminal Court is at present weak and without solid enforcement, in no small part because of the US' failure to recognize the body and provide it support. The Obama administration and the current Congress seem inclined to change that stance, but at the present there is no means for a US citizen to be brought to ICC justice, and more than a few laws on US books allowing extraordinary intervention in ICC affairs to protect accused US citizens. Even if it were possible, the article makes no allowance for assertion of US jurisdiction or national sovereignty, which would almost certainly be preferred in this case; and as the US would be investigating and prosecuting its own citizens, that would take precedence over ICC proceedings even if such would carry weight in the present domestic climate.

Also, the authors are obsessed with the bogeyman of the Special Prosecutor. Without mentioning the Starr prosecution by name, they recall the specter of the fruitless efforts of that commission to find fault with the Clinton administration, and imply that such an experience is what the US should expect from any such investigation. The Starr investigation, whatever its origins, devolved into a witch hunt: the determination to find something wrong with the Clinton administration overrode the legal aspects and its own moral imperative. Given the apparent wealth of evidence to assail Bush with war crimes, illegal and unconstitutional acts and general incompetence and negligence in perfoming the duties of the various offices, the likelihood that we would see such again is small. And with the only alternative being a discredited Department of Justice still paralyzed by its ideological evisceration of late, alternatives to such a process are at best very hard to find. Again, the authors seem to think that messy processes that threaten to spin out of control are counter to the democratic tradition.

Democracy is many things, including both robust and messy. The US has survived multiple constitutional crises, trials, disagreements and upsets, going back to the Jay court and the concept of judicial review. Rivkin and Casey seem to think that US democracy is too fragile to go through the indignities of investigation, and too weak on the global stage to assert jurisdiction in criminal matters with global implications.

The tone of their opinion suggests they would prefer to forget everything and move forward, and they bring up false examples of nebulous political horrors as proofs for halting the proposed investigations. Yet their examples are toothless: the one is a recourse for states where the offending persons or institutions are not brought to justice by their own nations (and even so are not as yet recognised by the US); the other a blatantly partisan effort, allowed to exceed its mandate out of petty political ambition, and not likely to be repeated.

US democracy does, however, depend on two things: transparency and accountability. For the nation to function properly its workings must be as public as possible, and those in positions of authority must be held responsible for that authority and disciplined if necessary. Rivkin and Casey would deny these two requirements, preferring ignorance and immunity to the real responsibilities of citizens in a democratic nation. The article is the eloquent complaint of the educated bully: the writers are apparently afraid that the mean-spirited bloodthirsty methods of the Right might be used against them now that real crimes are in evidence, and rather than face that they prefer to forget everything and behave as if nothing untoward happened in the last eight years.

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