"The true saint is the person who whips and kills the people for the good of the people."
-Charles Baudelaire
It is tempting to view the commutation of prison time for Lewis Libby, the disgraced White House aide convicted of lying and obstructing justice, as another instance of craven hypocrisy by President Bush. As a candidate in 1999, Bush assured voters, "I don’t believe my role is to replace the verdict of a jury with my own," unless "new facts" arose or the trial was "unfair" — a standard which the Libby case clearly fails.
Or perhaps the commutation will serve as a disturbing reminder of how the administration regularly lies with impunity in Washington. President Bush famously promised, in serious tones at a televised White House meeting, to both fire and punish anyone involved in the outing of CIA agent Valerie Plame. Instead, he retained all the senior officials embroiled in the scandal, even after their roles were exposed in trial testimony and news reports, with no visible consequences. Now the President is using his clemency power to protect the one official convicted on related crimes. In his surreal statement about that choice, Bush volunteered his belief that "if a person does not tell the truth, particularly if he serves in government and holds the public trust, he must be held accountable."
But it would be wrong to criticize Bush’s decision as one more hypocritical or deceitful maneuver, because it is actually far more profound.
The commutation of the 30-month prison sentence for Lewis Libby, the highest-ranking White House official convicted of a felony since Iran-Contra, fits into a larger, systemic assault on American rule of law by the Bush Administration.
In fact, Libby’s special treatment is a microcosm of current U.S. policy. Libby is basically receiving a post-conviction protection that the Bush Administration now routinely extends to many potential criminals in the U.S. government. The administration successfully pushed legislation last year granting immunity to officials who might someday be prosecuted for war crimes or torture. It is a policy that embodies the administration’s distinctly un-American view that powerful government officials should operate above the law.
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The same legislation, the Military Commissions Act, strips constitutional rights and habeas corpus in a direct attack on the protections that have grounded the rule of law in America since its founding, 231 years ago this week. The unconstitutional act, like the administration’s illegal detention, torture, spying and secret prisons, will continue as long as the federal courts ignore the administration’s criminal conduct in deference to claims of executive authority in the Global War on Terror.
Even when the courts have confronted Bush’s assault on the rule of law — overruling detention policies in two cases and one spying lawsuit — the administration has stayed or circumvented the rulings, shielded law-breakers within the U.S. government, or simply lied by claiming all of its activities, including those found unconstitutional by U.S. courts, are legal. When pressed on illegal torture techniques, for example, Bush made the Nixonian declaration that "whatever we have done is legal." Then there is the slew of rear-guard actions that the administration uses to subvert the law and our democratic process. These include extreme secrecy, defying congressional subpoenas, extralegal signing statements and unprecedented assertions of the "state secrets privilege" – a courtroom tactic where the administration literally tells judges that cases should not proceed because they might jeopardize "state secrets." (It often works.)
The administration defends this assault on the rule of law as vital to defending the homeland. If anything, the most vocal Bush supporters are proud of their zeal to commit crimes that supposedly advance national security. The Republicans running to replace Bush frequently tout their willingness to whip the people for the good of the people, as Baudelaire would say, while Bush’s leading Democratic opponents have rarely tackled these issues head on. (Kerry "rarely" mentioned torture in the 2004 campaign, since Democrats generally thought human rights were "political suicide" after 9/11, as Georgetown Law Professor David Cole argues in the new NYRB.)
Of course, Libby can’t even claim a "trade-off" between law and security. He lied to FBI agents to cover up the outing of a CIA agent that compromised national security. The motivation for the leak was a potentially illegal hit job to discredit American citizens who had served in the U.S. government. It was as dirty and petty as Watergate, except this time the crooks broke into their own files to attack opponents.
Since the Libby commutation is part of a much broader problem, the President’s opponents cannot afford to simply criticize it in isolation. They have a duty to outline an alternative agenda that prioritizes the rehabilitation of the rule of law. Which candidates will commit to rolling back the legislative immunity for war criminals? Who will commit to confronting every official responsible for mishandling classified information (including Libby and Cheney), practicing torture and illegally spying on American citizens? Who will pursue investigations now — not "if elected" — to follow the horrors of Abu Ghraib up the chain of command, past the Taguba Report, however high they go?
That is the surest way to begin rescuing the rule of law in this country and restore the public trust. Because as Americans gather for July 4th celebrations, talk will likely turn to two convicted criminals who embody Bush’s approach to the rule of law: Lewis Libby and Paris Hilton. So powerful and rich, they can live above the law, and they make no apologies for it. Americans overwhelmingly opposed a pardon for Libby, and initial polling suggests they oppose the commutation. The question for politicians is not whether they agree with the public on this fundamental matter of law and order, but what are they going to do about it?
UPDATE: Blogger and author Marcy Wheeler argues that Bush’s preference for commutation instead of a pardon is also designed to subvert the rule of law. "He commuted Libby’s sentence, guaranteeing not only that Libby wouldn’t talk, but retaining Libby’s right to invoke the Fifth," she writes. For congressional responses, blogger Phoenix Woman notes that House Judiciary Chairman John Conyers is expected to hold hearings on the commutation next week.
