GOP Members of Congress now say they want Dick Cheney to go away, but Cheney may have other motives for getting in our faces
Recent discussions about whether or not to prosecute members of the previous administration for torture or other war crimes miss the point.
The crucial issue is not one of retribution or even of restoring national honor or moral self esteem. It is a matter of precedent. It is by now well established that one underlying aim of the last presidency, or perhaps one should say of the last vice-presidency, was to establish a positively monarchical view of presidential prerogative and to use 'the war on terror' to do it.
The purpose of former Vice President Cheney's otherwise bizarre exit interviews--in which he took personal responsibility for the process whereby various procedures (deemed torture by the rest of us) were devised and cleared as legal--was to lay down a challenge: either prosecute us or tacitly admit that what we did was legal. But if no prosecution ensues then the actions of the Bush presidency remain available as a precedent that can be cited by the next president who shares Bush and Cheney's very high (indeed functionally 'absolutist') view of presidential prerogative.
Of course, it is very tempting at this point simply to applaud President Obama for his executive orders and accept his assurances: that torture is against the law, that no one is above the law, and that his Administration is ending the most obnoxious aspects of the Bush anti-terror regime.
But that is not the point. The virtues of individual leaders and the policies of particular administrations are no protection against the future actions of less virtuous or ideologically opposed persons and governments. What is at stake here is law, not policy, constitutional structures, not particular persons or measures.
Whatever else Cheney may be (war criminal, any one?), he is not a fool; he has been playing the long game here, trying to render permanent his (monarchical or imperial) view of the constitution and of the presidency; a view established during the Bush administration not by legislation, nor by the courts, but rather through the exercise of executive power, guided only by the counsel of legal advisers, located within the executive itself. By their recent behavior, Cheney (and to a lesser extent Bush -- typically the former president did not quite seem to understand the stakes here)seems to me to have been asserting a major constitutional change in a way that is capable of withstanding the verdict of mere elections. This approach alone ensures that President Obama's assurances that we should 'look forward and not back' and even his executive orders are simply not adequate to the present circumstances. Members of the former administration have been looking forward and they still need to be stopped.
To do so, it may not be necessary to resort to the prosecution of individuals, the political costs of which seem to be far in excess of anything that the Obama administration and the nation are willing to pay. There is perhaps a more elegant solution available.
Could we not have some sort of declarative statute, a sort of latter day Petition of Right,intended to reaffirm the legal status quo ante? Such a measure would indeed confirm the illegality of many of the Bush administration's actions and outlaw their more extreme readings of presidential prerogative.
Passing a statute need not lead to prosecutions. Rather the perpetrators could then be pardoned--an action that could be combined with some sort of commission designed to expose the full extent of what really happened, a commission whose proceedings would surely be greatly eased by the absence of the threat of legal penalty.
This approach would not be a political witch hunt but rather a statement of legal and constitutional principle, followed by a sustained effort to uncover the truth. As such, the process might well garner some bi-partisan support. At the very least, Republicans, desperate to distance themselves from President Bush and all his works, might find it hard to oppose.
What is at stake here is not an amnesty but a pardon. You do not, of course, pardon someone who is innocent, which explains why President Bush did not have recourse to his pardon power to protect either himself or his minions. If you are not guilty, you do not need a pardon, and Bush and his colleagues did not think that they were guilty of anything. But if you pardon someone you also assert his or her guilt.
Bush and Cheney's recent exit interviews constitute, amongst other things, a challenge -- prosecute us or concede that what we did was legal, or, if not simply legal, then certainly within the bounds of reasonable legal argument. What they seem to have wanted was to expand the limits of the say-able and the do-able in ways that are simply incompatible with the rule of law in a democracy. Accordingly, the one thing they want even less than a trial is a pardon.
Of course, it would be nice to put some of these people behind bars, but ruling their views of what the law means and of what the president can do permanently out of bounds is easier to accomplish, more important, and, in the long run, a great deal more satisfying.