The Rule of Law

Phil Zelikow, formerly a top aide to Condoleezza Rice at the State Department and a torture opponent has an excellent post on the nonsensical legal position the Obama administration seems to have twisted itself into:

There seem to be four possibilities here:

1. No unlawful conduct occurred. That judgment should, at least initially, be made by the Attorney General, free from political influence.

2. Unlawful conduct occurred, but the suspects have a credible defense — that before undertaking their unlawful conduct, they relied in good faith on authoritative (though in retrospect, mistaken) legal opinions that the planned conduct would be lawful, and these opinions were also issued in good faith. Again, that judgment should be made, at least initially, by the attorney general, free from political influence.

3. Unlawful conduct occurred, and the legal opinions are not an adequate defense. Federal prosecutors, regular or specially appointed, then go to work. Again, the prosecutorial judgments should be free from inappropriate political influence.

4. Unlawful conduct occurred, and the legal opinions might not be an adequate defense. But President Obama decides to issue a blanket pardon for any possible criminal activity.

Instead, we’ve chosen wacky option number five: “in which the president does not exercise his pardon power but instead, in effect, tells his attorney general what conclusions he should reach about whether federal officials broke the law.” This is no good. I don’t, personally, think the presidential pardon power is a very good idea. But it’s right there in the constitution. Obama can use it if he wants to offer a blanket pardon to anyone who followed Bush/OLC guidelines and tortured people.

The only part of Zelikow’s post I disagree with is this rhetorical question: “Can you imagine what folks would say if a Republican president exercised option #5?” I mean, we don’t need to “imagine” this scenario. What would happen is exactly what is happening now—a bunch of liberal bloggers would complain, the vast majority of conservatives would celebrate the immense virtues of torture, and the establishment would move on to other things. There’s no giant mystery about this. For whatever reason, suggesting that the law be enforced qualifies you for a tinfoil hat and has ever since George W. Bush took office; Obama’s now reaping the benefits of that new standard.