Forgive and Forget?

As part of its “Transitions” series, The New York Times devoted a full page Sunday to op-eds expressing varying viewpoints on what President-elect Barack Obama should do about “the legal legacy of the war on terrorism.”

It’s an odd way of framing the issue — and an inherent concession to the notion that what legal experts around the world widely view as lawlessness and lawbreaking by U.S. officials is merely a legitimate difference of political opinion.

This leads perfectly into Harvard Professor Charles Fried’s analysis that for the next administration to prosecute those officials who broke the law would be akin to “the night of the long knives when Hitler eliminated his closest associates and rivals.”

But since when is an independent investigation into criminal wrongdoing by public officials the same as the summary execution of political rivals?  One could argue that the impeachment of President Bill Clinton was a political prosecution, given the subject matter of his alleged perjury.  But the direct and intentional violation of domestic and international laws prohibiting torture is no trivial matter.

Upholding the rule of law was paramount when it came to investigating Clinton, as well as in the current investigation of Illinois Gov. Rod Blagojevich. But for some reason, conservatives such as Fried, his Harvard colleague Jack Goldsmith, and the Wall Street Journal’s editorial board are intent on portraying the systematic lawbreaking by the highest officials in our federal government over the last eight years as a mere political disagreement. Even Goldsmith, a former head of Office of Legal Counsel under President George. W. Bush, wrote that the legal memos justifying their actions displayed shoddy legal reasoning and were written to provide a “golden shield” that would protect government officials from future prosecutions.

As I’ve written before, this makes the memos a far less persuasive reason to refuse to investigate further.

Dahlia Lithwick, writing on the same page in The Times, has it right when she quotes Robert Jackson, the chief prosecutor for the United States at Nuremberg, saying: “Law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power.”

Just as the U.S. government saw fit to investigate President Richard Nixon, Clinton and many others, it would be an odd choice indeed — and a dangerous message to send to the rest of the world — if the United States were to investigate its own officials only for relatively petty crimes committed here at home, but decided to ignore egregious violations of the laws of other nations and possible crimes against humanity when they’re committed against non-Americans.

Sure, everyone wants to move on and enjoy living under an administration that has promised to faithfully execute the law. But the purpose of the criminal justice system is to bring to light the lawbreaking of the past and, in punishing it, to ensure it doesn’t happen again. It’s also to demonstrate to the public, both at home and abroad, that we’re a nation committed to the rule of law. Much as we’d all like to trust that the new administration will follow the law, the consequences of executive lawbreaking, as its victims around the world now know, are too serious to be left simply to wishful thinking.