Human Rights Watch has released a detailed report calling on the Obama administration to prosecute former Bush administration officials for their role in the torture and abuse of detainees. Seems reasonable enough. After all, this is not a tyrannical Middle Eastern dictatorship nor an African kleptocracy. In America, public officials are never above the law. Or are they? The Obama administration, to the disappointment of many, has taken the rather Orwellian view that, yes, indeed, on most issues of any seriousness the political class is in fact above the law. Obama himself has suggested that while “nobody is above the law,” he prefers “looking forward” to “looking backwards.” This notion — that our political class should not have to face the embarrassment of criminal court (*gasp* “to be treated like common thugs!”) — has, for whatever reason, become such a widely acknowledged position amongst Americans that bring up the idea of, say, prosecuting Henry Kissinger or impeaching so-and-so president and you are likely to find yourself viewed as some kind of anarchist radical with a grudge against America.
I just finished watching a debate on Democracy Now! between Kenneth Roth, the executive director of HRW, and John Baker, a professor of law at Louisiana State University; the subject was HRW’s 107-page report. Baker’s argument against the prosecution of former Bush administration officials was partly legalistic, and partly based on a kind of visceral reaction to the idea that members of our political class might one day find themselves charged with a crime (or, heaven forbid, behind bars for something they did while in office!) Baker, with a kind of shocked gasp, says: “The idea that we would go and prosecute senior officials, the President and others, is simply beyond anything we’ve ever done in this country, and there’s no basis for it.”
The audacity! The brazenness! The nerve! Err, say what?
Baker’s view reflects a sentiment that is disturbingly common amongst Americans. It is a view that one might call “elite exceptionalism.” To many Americans, the idea that our political leaders, much exalted and lionized in this country (our elections are expensive popularity contests in ways that other countries’ are not), should ever have to face the shame of criminal court is truly beyond the pale. It is improper. It is embarrassing. It is an unnecessary spectacle. But, of course, politicians are not above the law, regardless of how popular they are or what party they belong to. And by acting shocked and insulted at the notion of holding our leaders to account ‘like common criminals,’ we help create a political culture of impunity in Washington.
Baker goes on:
I mean, if we’re going to have a situation where every time we have a change of party in the White House, that the new administration prosecutes the former administration, then we really are going down the path of some third-world countries. I mean, one can make a case against President Obama, for instance, that the use of drones to kill enemy—enemies in other countries is unnecessary, that instead we could capture them, and that he has gone well beyond self-defense. One can make that case. I’m not going to make it, but one can make it. I don’t want a future administration under Republicans coming in and talking about prosecuting Attorney General Holder or President Obama. I don’t think that that is healthy.
I’m curious as to how the holding to account of our political elites is considered “unhealthy.” On the contrary. What could be more healthy for a democracy? In turn, what could be more corrupting than acquiescing to the increasingly regular breach of our laws — the domestic spying programs, the illegal foreign wars, the encroachment on our civil liberties, the torture of detainees — by our elected officials? I can hardly think of anything at all that would be more corrosive to the health of our representative system of government. Oh, and the possibility that Obama might be forced to defend his use of drones overseas is not indicative of our slide towards becoming a third-world country. It is indicative of the opposite.