The logic of this position, and its likely consequences, warrants close examination. If we were to ask President Obama 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 the 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 can not 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% 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 can not figure out a legal way of dealing with an emergency? For let us be clear, there is no evidence that after 9/11 the unconstitutional route was the only possible route to defend the country. Were the legal options and their constitutional variants ever seriously itemized and discussed? The Obama administration, like the Bush operatives, have never publically addressed this question.
So what is it that we want for America? Do we want a two tier legal system where presidents and their appointees can break the law with impunity? Do we want a legal system where it is accepted that citizens and residents can disappear into federal dungeons? Is it all right with us that our fellow citizens, following the orders of the president, will torture, detain, shackle and otherwise abuse others without any regard for law – and they too will be immune? Because, whether they realize it or not, that is what the Obama Justice Department is arguing for when it defends John Ashcroft.
Dwight Eisenhower once asked the question, "how far can go without destroying from within what you are trying to defend from without?" It is time for us to ask this question about the heinous "security" tactics of President George Bush Jr. as well as President Barack Obama’s unfortunate willingness to defend them.