Rule of Law...Or At Least Convenient Laws

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During the Nuremberg Trials, the Allied Powers established that "I was just following orders" is not a legitimate defense for heinous and barbarous acts. It doesn't matter how legitimate the authorities above you might otherwise be, they don't have the authority to order to you break the law. It also doesn't matter if they tell you that their orders are legal. If you choose to follow such orders, then you are completely responsible for your own actions — as a morally autonomous and responsible adult, no other conclusion is legally possible. You are not protected by any laws or any international treaties.

You may, however, be protected by the American President. C.I.A. employees and independent contractors who broke the law by torturing prisoners under orders from the Bush administration could be expected to be protected by Bush, but now it appears that they will be protected by Barack Obama as well. So, first Obama defended the ability of the government to engage in illegal wiretapping without even notifying the public about it, never mind be punished for it, and now he is defending the ability of government employees to torture suspects so long as they are instructed to do so — and told that it's all legal and approved — by some credible legal authority.

Obama is leaving open possibility of prosecuting higher-ranking government officials who ordered the illegal actions, but even that can't really be counted on because the Obama administration spends a lot more time insisting that we need to "move on" and "look to the future" than he does about establishing justice, preserving the rule of law, and restoring America's moral and legal standing in the world. So long as the former remains more of a priority than the latter, then we should assume that little will be done to bring Bush administration officials to justice because that's just as much "looking backward" as bringing the actual torturers to justice. Do note that he has refused thus far to appoint any sort of independent prosecutor to even look into the possibility that laws were broken.

Do we really need to recount all the reasons why "I was just following orders" can't be accepted as a legitimate reason for allowing torturers to go free? We shouldn't, but given the persistent moral and legal failings of the Obama administration lately, perhaps it really is necessary after all. That may be one of the most tragic aspects of this: that people who campaigned on a platform of the rule of law and who were elected in part on the belief that they would restore a measure of justice to government actions, have to be reminded about the fundamentals of these principles.

The most obvious problem in all this is the fact that Barack Obama is using as an excuse the idea that his administration needs to "assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution." Exactly the opposite needs to be the case: people who act on behalf of the government must be assured that unless they exercise some basic moral and legal common sense reasoning, then they will be held accountable for their actions and prosecuted for violating any laws — most especially obvious laws which any half-conscious adult should have noticed they were breaking.

Government employees and independent contractors are not automatons whom we simply wind up and aim in some desired direction; they are morally responsible adults who must be held morally and legally responsible for actions they choose to take. They have a choice to not take action they suspect may be legally questionable or which appear to be morally dubious. Granted, there are grey areas where it's not always obvious what is legal and what is illegal. I'd like to think that those engaged in actively administering criminal treatments like waterboarding would have noticed that they were breaking the law, but I could accept that not every situation was quite so clear. Is that a reason to withhold prosecution? Absolutely not.

If complete ignorance of the law is not a valid defense for breaking the law without consequences, then difficulty in discerning the boundaries of the law won't be either. Even the most junior members of the military are legally and morally expected to uphold these standards under far more difficult and stressful conditions. Does anyone really want to argue that soldiers should be immune from prosecution for war crimes if they are told that the Justice Department decided it was legal to summarily execute suspected Muslim terrorists? So I don't think it's not asking too much to have these expectations of experienced civilians who have the luxury of time and space to consider their actions.

Even if we ignore all of this, though, then the most we have is a possible defense at a trial — in other words, we have a defense against particular charges, not a defense for preventing prosecutions from occurring. Obama's argument that there shouldn't even be an investigation and prosecution of those he almost admits committed war crimes is as disturbing as Bush's argument that we should just take his word that only "evildoers" were being detained and therefore they do not deserve habeas rights.

The whole point of independent courts is to make a determination of facts and evaluate arguments on both sides of a legal case. It's within the authority of a prosecutor's office to decide that some cases aren't worth pursuing or that there isn't enough evidence to issue charges, but that’s not what's happening here. Instead, we have the prosecutor's office declaring that heinous crimes were committed, but the criminals will be preemptively excused because they were committed with the permission of people in that same office. Even if it were the case that "I was just following orders" were a legitimate defense for war crimes, that's a determination that has to be made by a court of law, not by prosecutors and administration officials who may have a vested interest in such cases being kept out of the courts.

Moreover, the United States of America has signed treaties which obligate it to hold exactly such people accountable for their actions and to prosecute them for their crimes. Barack Obama and Attorney General Eric Holder have, in effect, tossed aside some of America's most fundamental treaty obligations — they are saying that they will simply ignore any treaty which they deem too inconvenient for current political circumstances. Eric Holder is the first attorney general to ever declare that American war criminals will be immune from prosecution. Not only will this fail to restore America's standing abroad, but it's far too similar the same attitude which George W. Bush took when he was in office.

Now all government employees and agents know that so long as they can get someone higher than them to approve of an action, they can get away with murder. There is no reason to assume that this "cover" will only apply to people who committed crimes under the orders of Bush administration officials. Going forward, agents of our government are being given the message that future illegal orders will not result in prosecution, at least if someone tells them that the Justice Department approves. Yes, some of the most fundamental moral and legal documents of the latter half of the twentieth century state otherwise, but they are no longer being honored by the American president.

What kind of society would we have if those pulling the trigger are granted blanket immunity so long as they can wave around a legal opinion written by a lawyer who was only chosen for the job because they could be counted on to write whatever the president wanted? If such a system were established, who exactly is committing a crime? A president can pick anyone they want to give them legal advice. If it's tough to prosecute people for relying on a valid legal opinion, it's tougher to prosecute those writing that opinion, even if it is arguing that torture or murder is legal. Once that opinion is issued, all those who pass on orders based on the opinion get immunity. This is the perfect set-up for massive war crimes that can never be prosecuted — especially if no one ever wants to expose the system because they might be able to take advantage of it themselves.

The Obama administration is explicitly adopting some of the Bush administration's worst characteristics — and for no good reason. They aren't even using a bad reason that can seem superficially good. We need a president who upholds the law all the time, not just when it's politically convenient. We need a president who defends justice all the time, not merely when it's politically helpful. We cannot long survive without a president who puts the rule of law first, but we won't get one until we demand it from our elected leaders rather than trying to make excuses for why it's OK for this president at this time to adopt the sorts of attitudes and practices we condemned in the previous president. Obama must, if anything, be held to a higher standard than Bush, not a lower one.