Thu, 23 Apr 2009 20:58:07 +0000 – By Peter Johnson, Jr.FOX News Legal Analyst/Trial and Appellate Lawyer
President Obama was willing to accept a book from strongman Hugo Chavez but now it seems he may be getting ready to throw the book at his predecessor: President Bush and his top appointees and lawyers. What's the potential charge? Torture!
President Obama has publicly renounced the use of waterboarding as a form of interrogation and at first made it clear that its use in the past against three Al Qaeda terrrorists would not be the subject of further inquiry. Now he has changed his tune and has delegated the task of deciding whether to prosecute the last administration for torture of terrorists to Attorney General Eric Holder.
Fear is in the air as the Attorney General decides whether public policy decisions based on legal advice to justify and authorize water boarding are crimes under American laws and whether those who violated the law should be prosecuted for it. It's unprecedented in this country -- and it's frightening for anyone who even considered public service or has even considered becoming a lawyer. Is the former president of the United States consulting a lawyer today to consider his legal options and the chance he will be indicted? Is a federal Circuit Court judge who gave legal advice in good faith as an Assistant Attorney General now subject to impeachment by a Congress intent on exacting a political pound of flesh? Are terrorists on our Ten Most Wanted List relieved to be replaced by would-be, purported enablers of torture who won national election twice?
It needs to stop now. Every moment that the president allows an atmosphere in which we even consider that political disagreement should be the basis of criminal indictment, every moment that we even conjure the notion that a legal opinion which is either poorly written or wrong is the basis for a criminal charge, every moment that we allow a lynch mob mentality to move us closer to criminalizing executive decision making weakens us at home and around the world. The former president and his top appointees no longer seek our approval but by the same token they should not forced to seek their successor's pardon.
Imagine the implications of what is being considered now. Government lawyers who give opinions today about life and death issues of domestic and foreign policy may become the criminal defendants of tomorrow if their advice and counsel is later disregarded or disagreed with or even disdained by a newly elected administration. The advice which led to the World War II bombings of Hiroshima and Nagasaki, the decision to send advisers to Vietnam, the decisions to send troops to Bosnia or Somalia and finally the decisions to send troops to Afghanistan and Iraq and pursue a war on terror -are those the decisions which merit criminal scrutiny? When a party loses an election should its leaders also risk the loss of their freedom because of what now may be unpopular choices based on arguably disproven legal and political determinations?
We really are at a crossroads. It's easy to make the case that any form of enhanced interrogation is not only cruel and inhuman but is torture. However American law and international law does not specifically define what torture is. Very often it is said that though it's not defined you know torture when you see it. Like we knew the face of terrorism in 2001 when we were the victim of a cruel and punishing attack which wiped out thousands of lives. Thatdefinedterrorism. We also know that Los Angeles was spared attack a short time later because of information provided through the waterboarding of a terrorist.
The days of waterboarding are over -- for better or worse. Many believe for the worse. But for the past administration, the torture of uncertainty has just begun. Their queasy realization that somehow with the artful manipulation of public opinion, their courage and commitment in the face of crisis can be spun into shameful criminal conduct which deserves the world's scorn should sicken us as well. Surely, presidents come and go but certainly our nation must endure: sometimes divided on issues but always united in our confidence that a presidential election may be a mandate for change but is never a mandate to prosecutethose who served in good faith. That's not a Democratic or a Republican concept. That's an American value.