FEIN: The rule of law

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By Bruce Fein

COMMENTARY:

President Barack Obama promised to restore the rule of law and to prevent future wrongdoing by high-level government officials.

To honor that promise, Mr. Obama should investigate, among others, former President George W. Bush, former Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld, former Attorney General John Ashcroft, former White House counsel and Attorney General Alberto Gonzales, and former White House political adviser Karl Rove. The crimes to be investigated should include complicity in torture, illegal surveillance, illegal detention, perjury, obstruction of justice and contempt of Congress. Prosecutions should follow if the evidence convinces a grand jury to indict.

The best way to deter government criminality and to teach citizens the rule of law is to punish the perpetrators who are unanimously found guilty beyond a reasonable doubt by independent and impartial jurors. In other words, as British sage Samuel Johnson put it: "Depend upon it, sir, when a man knows he will be hanged in a fortnight, it concentrates his mind wonderfully."

Accordingly, Jane Meyer reports in "The Dark Side" that the Federal Bureau of Investigation refused to participate in "enhanced interrogation techniques," including waterboarding, because of fear of criminal prosecution for torture or war crimes. Miss Meyer is substantiated by Eric Lichtblau's report in "Bush's Law": "*enior FBI officials" moderated their responses to demands for "forward-leaning" interventions because of concerns about potential criminal and civil liability if they acted on overreaching legal opinions. Miss Meyer also writes that, "after seeing midlevel colleagues convicted for following what they thought were presidential wishes in the Iran-Contra scandal, Kofer Black [of the CIA] warned his subordinates that the CIA was not in the "rid-me-of-this priest" business."

Former Assistant Attorney General for the Office of Legal Counsel, Jack Goldsmith, writes in "The Terror Presidency" that the CIA required explicit presidential authorization and an OLC legal opinion to serve as a "golden shieldagainst future prosecution before proceeding with abusive interrogation.

Then-Acting Attorney General James Comey balked at approving President George W. Bush's warrantless surveillance program without modification in March 2004 probably because he feared criminal prosecution under the Foreign Intelligence Surveillance Act (FISA). Waterboarding ended abruptly after its disclosure made clear to President Bush the vulnerability of participants to criminal prosecution.

The glaring failures to prosecute many who were not deterred by the criminal law created a climate of lawlessness that moved from national security to the domestic arena. Treasury Secretary Henry M. Paulson brazenly explained to reporter David Cho of The Washington Post his takeovers of Fannie Mae, Freddie Mac, and other Wall Street goliaths: "Even if you don't have the authorities - and frankly I didn't have the authorities for anything - if you take charge, people will follow."

Unpunished lawlessness by government officials invites lawlessness generally. Supreme Court Justice Louis D. Brandeis taught in Olmstead v. United States (1928): "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

Punishment is certainly not the only vehicle to prevent wrongdoing. To avoid rape, for example, a woman might consider wearing a burqa to avoid arousing a man's sexual appetites. But she would lose her freedom and self-expression. The best way to deter rape is to prosecute the rapist.

Government officials implicated in waterboarding had the analysis and approval of lawyers who concluded, however wrongly, that it did not rise to the level of torture. It has been argued that if government officials cannot safely rely on legal advice, they will be paralyzed. But mistake of law has been recognized as a defense to criminal conduct at least since the 1976 decision by United States Court of Appeals for the District of Columbia Circuit in United States v. Barker. The Military Commissions Act of 2006 similarly provides with regard to interrogation crimes that "good faith reliance on counsel" shall be a defense. The criminal law, however, would be crippled if the executive could immunize its own violations by clearly erroneous legal advice-comparable to permitting a man to be a judge in his own case.

President Obama is fully capable of simultaneously investigating or prosecuting Bush administration officials, addressing how to close Guantanamo, and grappling with the nation's economic travails. Even during the height of the Watergate investigations and prosecutions, President Nixon successfully navigated the Yom Kippur War crisis. Moreover, the Constitution saddles Congress, not the president, with responsibility for determining the treatment of "enemy combatants" during the so-called "War on Terrorism." Congress did so in the Military Commissions Act, which it can amend. Congress also holds the power of the purse. The executive is not the only branch capable of governing.

In the New York Times, Former Solicitor General Charles Fried has argued against prosecutions because the suspected Bush administration culprits fell short of the criminality of Adolf Hitler, Josef Stalin or Mao Tse-tung! That absurdity is akin to reserving murder prosecutions to the likes of Jack the Ripper.

Mr. Fried further urges that "our leaders were defending their country and people ... against a terrifying threat by ruthless attackers with no sense of moral restraint at all." Mr. Bush, Mr. Cheney, Mr. Rumsfeld, Mr. Gonzales and others, however, took an oath to "defend the Constitution of the United States," not their idiosyncratic notions of what was good for the country. And as for those ruthless attackers, ask the 500 who rotted at Guantanamo for years wrongly detained as "enemy combatants" before their releases. And detentions of 17 Uighurs continue after seven years despite the government's conceding their innocence.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates Inc. and author of "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy."