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Yesterday saw two headlines that drove home a new, sad political reality in the US. These two headlines stated that Obama advisers have leaked that it is unlikely Bush administration officials will face prosecution for authorizing or taking part in "interrogation" that constitutes torture and that Joe Lieberman will retain his Chairmanship of the Homeland Security Committee and his membership in the Democratic caucus despite his campaigning for McCain and other Republicans in this month’s elections.
We have become a society that believes in the sternest of consequences when average citizens do wrong and yet we have a complete absence of consequences for the political class. Perhaps more than any other person, Cass Sunstein has come to represent the face of this view:
In July, at Netroots Nation 2008, Sunstein sat on a panel titled "The Next President and the Law", where he opined that prosecuting officials of the Bush administration would amount to the criminalizing of policy differences. Full video of the session is available here and an analysis by Glenn Greenwald of the spread of this attitude is available here.
At the 61 minute mark in the video, the Lake’s own eCAHNomics challenges Sunstein’s comments and points out that the Nixon pardon set a horrible precedent in terms of holding the Executive branch accountable for bad behavior and how that has enabled the Bush administration to move forward with its crimes knowing that it will not be held accountable.
What I find baffling is that the same people who so casually advise us not to pursue criminal charges for Bush crimes are the very ones who advocate the stiffest of punishments for Joe the Citizen when he does wrong. As an example, here is the transcript of testimony by Heritage Foundation Senior Policy Analyst David B. Muhlhausen delivered in June, 2007 for a Senate Judiciary subcomittee.
In his testimony, Muhlhausen is performing impressive mental gymnastics to present the two-fold argument that the death penalty is not racist and does serve as a deterrent to murder. His conclusion:
Americans support capital punishment for two good reasons. First, there is little evidence to suggest that minorities are treated unfairly. Second, capital punishment produces a strong deterrent effect that saves lives.
But look who comes out of nowhere into the testimony:
The strength of these findings has caused some legal scholars, originally opposed to the death penalty on moral grounds, to rethink their case. In particular, Professor Cass R. Sunstein of the University of Chicago has commented:
If the recent evidence of deterrence is shown to be correct, then opponents of capital punishment will face an uphill struggle on moral grounds. If each execution is saving lives, the harms of capital punishment would have to be very great to justify its abolition, far greater than most critics have heretofore alleged.
For Cass Sunstein, capital punishment for the general population is a deterrent that saves lives but political leaders should face no consequences for their crimes.
President-elect Obama is said to be surrounding himself with advisers who advocate a variety of positions. Although I fear otherwise, it is my sincere hope that Sunstein is in that circle merely as an example of poor judgment.
Tags: Cass Sunstein, criminalizing policy differences, punishment
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About The Seminal
Sunstein’s position is even more gratuitous than it seems. More than a dozen Illinois deathrow inmates have been exonerated (Sunstein was teaching at the University of Chicago at the time). As a result, the previous governor, a Republican, commuted all death sentences in the state before leaving office. Since then there has been a de facto moratorium on executions in the state. The state didn’t fall apart. Nor has there been any mass movement to re-instate the death penalty. So Sunstein was espousing this view even though he was living in a state whose experience with the death penalty completely undercut it.
I suppose people don’t understand this. California has Disneyland. Florida has Disney World. Illinois has the University of Chicago.
Obama advisers or Rahm?
Well, the article credits two people with the leak. Rahm probably is one. I would think Sunstein is very likely the other one.
On the bright side how many Bushies will not be able to leave the country because of fear of being arrested for war crimes. Bush won’t be able to leave the country without assurances that he won’t be arrested and at the very least held for questioning.
We may never get Bush to trial, but the historical record will never change. Still we should try.
UIC is our Dark Tower Illinois needs Hobbits with the Ring!
American legal bull protecting Bush is a joke. The rest of the world will not honor it. It shames us that we lack the will to put Bush on trial after we forced Nixon out. It suggests that we are not the Men our Fathers were!
It suggests the Empire is weak, that there is no rule of law!
Dugg Jim if you Digg your own stories it save me time to read more Diaries:) I think everyone should Digg their own stories to save their readers time.
Thanks!
I disagree with Digging your own diaries. To me, it’s a bit pretentious, especially when you use the same name at both FDL/Oxdown and Digg. It also may have some small affect on their algorhythm.
BTW, you do know, you can erase the info in the description area at Digg and put a more accurate description of the article/post/diary? Sometimes the title alone is not all that descriptive and the precis can help folks at Digg see if they want to actualy visit FDL and read the article. Which is the purpose in Digging in the first place. :})
This is not directly on point, but: How much actual criminal law does Cass Sunstein know? Particularly, federal criminal law — what federal officials are most likely to violate. From his Wikipedia entry, zilch or close to it.
It’s the only way that I can make even minimal sense of Sunstein’s reported opinion that prosecuting Bush administration figures for crimes they reportedly perpetrated could criminalize “policy differences.” The only “policy difference” I can see there is whether to uphold the Rule of Law.
Will Sunstein’s recent translation to the Harvard Law School influence him to be more practical? A stint as a prosecutor would probably influence him a lot more.
I was a civil enforcement litigator for a decade before becoming a prosecutor. The gap between the civil law and the criminal law is huge, and exceedingly difficult to apprehend if you’ve never made that leap.
In the civil world, a false statement by a bank on a report to the FDIC can be a regulatory violation. Maybe a fine; maybe not. Naughty. But no jail time in the offing. In the other, the very same false statement can be a 5-year federal felony. A crime. Criminal trial with all the trimmings. Fine of up to $250,000 (probably mitigated by the sentencing guidelines, but still.)
As one cooperating fraud defendant explained, “I knew it was a lie. I didn’t know it was a federal felony.”
Of course, there’s also a large set of crimes with no civil offense counterparts. But you get few federal prosecutions for murder.
I have lived through the W. Bush administration seeing 5-year federal felonies all over the place. Lies to Congress, for instance, about matters within its jurisdiction. (Title 18, U.S. Code, Section 1001). There are plenty of 30-year felonies, too, with $1,000,000 fines, if you count the false statements to federally-insured financial institutions to get loans. (Title 18, U.S. Code, Section 1014).
There is something very grounding about the criminal law. Tick right down those elements of various violations of Title 18, U.S. Code, check, check, check, check. There’s no provision excepting high government officials. But it you don’t know in the first place that it’s a crime….
Absent criminal law experience, many such federal crimes would have gone right past me. I would have read the news, and would have been troubled, but would not understood that there were actual federal crimes. Even so, there’s much criminal law that I don’t know: I probably missed a lot.
For all his apparent brilliance, Sunstein unfortunately seems to have missed even more. Does Obama, I wonder, ever listen to Pat Fitzgerald?
Heh. Never thought of U. Chicago that way. Makes sense.
OMG. Went back & listened to my Q again & Sunstein’s response (forget about Dean’s defensive reaction to the Nixon pardon). The man’s a slime bucket. We’ll never get anything remotely connected to rule of law out of him. At every opportunity, he stresses inputs (”It’s tremendously exciting to havesome who’s a constitutional scholar in the WH”) instead of outcomes.
I also asked Susan Rice a question on a panel. Got an evasive response from her too. Sample of 2: Obama surrounds himself with people with no moral compass, but who have mastered the ability to dog whistle the progressives.
Every writer should be pretentious about what they write its when readers Digg it to that you get confirmation:)
As far as the rating system goes maybe that should be tweaked.
Well, you’ll have to take that up with the folks at Digg.
Thank you, greenharper. Please convey your statements to Obama.
I retired from federal service. Our guidelines were firm: policy was trumped by Regulations; Regulations were trumped by U.S. Code; U.S. Code was trumped by the Constitution. I don’t give a rip about “policy differences”; the Constitution, Bill of Rights and the Rule of Law have been abused by the Bush administration and their crimes should be brought to justice.
It seems the “Pelosi sickness” is pervasive in DC.
I recently participated in an online survey where we were to list in order of priority our main concerns for our country. I was disappointed to see that the outcome ranked them as (1) economy (2) Iraq war (3) restore the Constitution….
So sad.
Thanks for all the wonderful comments, folks. It looks like we will have a lot of work on our hands trying to get any attention on restoring the Constitution to its proper role in our government. We must make the effort, however, because all is lost if we don’t.