Barack Obama hit many grace notes in his race for the presidency. But one statement he made on the eve of his inaugural sounded off-key to Americans who have embraced the president’s campaign trail promise that he would give the nation “a president who has taught the Constitution and believes in the Constitution and will obey the Constitution of the United States of America.”
It is respect for the Constitution–not partisanship or personal dislike of George W. Bush, Dick Cheney and their acolytes–that has led to calls for accountability, in which the high crimes and misdemeanors of the former administration are assessed and addressed. Yet when pressed on the issue by ABC’s George Stephanopoulos, Obama again returned to the theme that “my orientation’s going to be to move forward.” Asked whether he would support the appointment of a special prosecutor to “independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping,” Obama replied that “my general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed to looking at what we got wrong in the past.”
A few days later, at his Senate Judiciary Committee confirmation hearing, Eric Holder, Obama’s nominee for attorney general, responded to a similar question by saying, “No one is above the law…. We will follow the evidence, the facts, the law, and let that take us where it should, but I think President-elect Obama has said it well. We don’t want to criminalize policy differences that might exist.” The problem with Obama’s statement, and even more so with Holder’s, is that it dismisses legitimate demands for accountability as mere partisan or ideological maneuvers that will detract from the serious business at hand for a new administration.
In fact, the opposite is true. Holding accountable those who promote the use of torture–in defiance of the Geneva Conventions and the Eighth Amendment’s bar on cruel and unusual punishment–is not a criminalization of policy differences. It is a matter of justice. Holding accountable those who approve the warrantless wiretapping of American citizens’ phone calls and e-mails–in defiance of settled law and the Fourth Amendment to the Constitution’s guarantee of privacy–is not a criminalization of policy differences. It is a matter of bringing lawbreakers to justice. Holding accountable those who lied to Congress and the American people about the alleged need to wage an illegal and unnecessary war on Iraq–in defiance of our system of checks and balances and without a constitutionally required declaration of war–is not a criminalization of policy differences. It is a signal to future commanders in chief that they cannot wage wars of whim.
To speak of “criminalizing” policy differences is to miss the point of the oath that presidents and their appointees, as well as members of Congress, take to protect and defend the Constitution. Getting to the bottom of the wrongdoing that was so widespread and blatant during the Bush years would not be a diversion; it would renew the separation of powers and re-establish the executive branch as an equal–not dominant and abusive–player in the government. Ultimately, this will benefit Obama, allowing a popular president who also happens to be a brilliant communicator to build powerful coalitions and lead by example and initiative rather than secrecy and signing statements.
Russ Feingold, chair of the Constitution subcommittee of the Senate Judiciary Committee, made many of these points in a December letter to the president-elect that outlined an agenda for restoring the rule of law. In that letter, Feingold explained “the need for a detailed accounting of what happened over the past eight years, and how the outgoing administration came to reject or ignore so many of the principles on which this nation was founded. It seems to me that we must fully understand the mistakes of the past in order to learn from them, address them, and prevent them from recurring.”
Obama should reconsider his ill-conceived move-forward-at-all-costs mantra, take Feingold’s wise counsel and support the appointment of a special prosecutor–or, as House Judiciary Committee chair John Conyers has suggested, an investigative commission with authority similar to that of a prosecutor. Failing that, Congress should step up and, building on the work done by Feingold and Conyers, initiate accountability hearings in order to detail the wrongdoings of the Bush/Cheney administration, address them thoroughly and, above all, begin the essential work of formally and finally ending the era of executive excess.