Saturday, January 17, 2009


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Dear Friends:

In constitutional theory, no person is above the law. We are all servants of the laws that we are sworn to uphold and protect. And, of course, any law which is capriciously or "selectively" applied is far worse than no law at all.

Regardless of how anyone feels about the outbound Bush administration, or about former president George W. Bush, his office was egregious in its disregard for court orders, constitutional rights, civil liberties, the doctrine of equal protection under the laws -- and the truth. While I am certain that Mr. Bush invoked "executive privilege, "national security" and "we are going to appeal that court decision," just as his staffers destroyed documents and computer hard drives for a number of reasons, a wanton regard for the law and a persistent relectance to provide information (i.e., evidence) does not instill faith amongst those who are observing you, or those who are counting on you to set an international example.

Incoming president Barack Obama has a decision to make -- will he uphold the constitution and honor his obligation to defend it, which involves investigating and possibly punishing those of his predecessors who might have violated it in all of its sanctity? Or he simply "forgive and forget" because it might be politically expedient to do so. If he yields to political expediency, he is repeating one of the worst traits of the outbound administration. The United States will be judged very harshly by the international community if we are perceived as inherently lawless where lawlessness is convenient. Violating laws, violating treaties, dishonoring obligations...these are things that have made the United states so unpopular in international circles. Part of the blowback associated with the previous administration's policies is our wrecked domestic economy.

I believe that bad laws should be changed, and that bad treaties should be amended or terminated. But I also believe that these things have to be done with due process, and with suitable explanations and the comfort of transparency.

Yes, I am an Internationalist. But this does not mean I am either disrespectful of the law, or that I can afford to have other people believe that I am too "morally flexible" as this suits my purposes.

The article which follows was originally printed in THE NEW YORK TIMES yesterday. It does apply to Mr. Obama, or Mr. Bush, or to the United States. It applies to each and every one of us in terms of how we conduct ourselves, and how we will be perceived.

January 16, 2009
Op-Ed Columnist
Forgive and Forget?

Last Sunday President-elect Barack Obama was asked whether he would seek an investigation of possible crimes by the Bush administration. “I don’t believe that anybody is above the law,” he responded, but “we need to look forward as opposed to looking backwards.”

I’m sorry, but if we don’t have an inquest into what happened during the Bush years — and nearly everyone has taken Mr. Obama’s remarks to mean that we won’t — this means that those who hold power are indeed above the law because they don’t face any consequences if they abuse their power.

Let’s be clear what we’re talking about here. It’s not just torture and illegal wiretapping, whose perpetrators claim, however implausibly, that they were patriots acting to defend the nation’s security. The fact is that the Bush administration’s abuses extended from environmental policy to voting rights. And most of the abuses involved using the power of government to reward political friends and punish political enemies.

At the Justice Department, for example, political appointees illegally reserved nonpolitical positions for “right-thinking Americans” — their term, not mine — and there’s strong evidence that officials used their positions both to undermine the protection of minority voting rights and to persecute Democratic politicians.

The hiring process at Justice echoed the hiring process during the occupation of Iraq — an occupation whose success was supposedly essential to national security — in which applicants were judged by their politics, their personal loyalty to President Bush and, according to some reports, by their views on Roe v. Wade, rather than by their ability to do the job.

Speaking of Iraq, let’s also not forget that country’s failed reconstruction: the Bush administration handed billions of dollars in no-bid contracts to politically connected companies, companies that then failed to deliver. And why should they have bothered to do their jobs? Any government official who tried to enforce accountability on, say, Halliburton quickly found his or her career derailed.

There’s much, much more. By my count, at least six important government agencies experienced major scandals over the past eight years — in most cases, scandals that were never properly investigated. And then there was the biggest scandal of all: Does anyone seriously doubt that the Bush administration deliberately misled the nation into invading Iraq?
Why, then, shouldn’t we have an official inquiry into abuses during the Bush years?

One answer you hear is that pursuing the truth would be divisive, that it would exacerbate partisanship. But if partisanship is so terrible, shouldn’t there be some penalty for the Bush administration’s politicization of every aspect of government?

Alternatively, we’re told that we don’t have to dwell on past abuses, because we won’t repeat them. But no important figure in the Bush administration, or among that administration’s political allies, has expressed remorse for breaking the law. What makes anyone think that they or their political heirs won’t do it all over again, given the chance?

In fact, we’ve already seen this movie. During the Reagan years, the Iran-contra conspirators violated the Constitution in the name of national security. But the first President Bush pardoned the major malefactors, and when the White House finally changed hands the political and media establishment gave Bill Clinton the same advice it’s giving Mr. Obama: let sleeping scandals lie.

Sure enough, the second Bush administration picked up right where the Iran-contra conspirators left off — which isn’t too surprising when you bear in mind that Mr. Bush actually hired some of those conspirators.

Now, it’s true that a serious investigation of Bush-era abuses would make Washington an uncomfortable place, both for those who abused power and those who acted as their enablers or apologists. And these people have a lot of friends. But the price of protecting their comfort would be high: If we whitewash the abuses of the past eight years, we’ll guarantee that they will happen again.

Meanwhile, about Mr. Obama: while it’s probably in his short-term political interests to forgive and forget, next week he’s going to swear to “preserve, protect, and defend the Constitution of the United States.” That’s not a conditional oath to be honored only when it’s convenient.
And to protect and defend the Constitution, a president must do more than obey the Constitution himself; he must hold those who violate the Constitution accountable. So Mr. Obama should reconsider his apparent decision to let the previous administration get away with crime. Consequences aside, that’s not a decision he has the right to make.


Douglas Castle




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