Not Illegal But We'll Punish Yoo (and Bybee) Anyway

The Obama administration has apparently dropped its desire to prosecute former Bush officials regarding their legal opinions of waterboarding. At a minimum they realized the political costs of such pursuits were far too high. Possibly, they also realized the moral and strategic necessity of having these tools at their disposal should they ever need to use such tactics to save American lives.

Unfortunately, the administration has not had the courage to admit that they made a mistake in going after Bush’s legal advisors. Not only has Obama not admitted to the morality and necessity of such techniques in certain instances, but his administration continues to push the issue for political reasons. While prosecution looks unlikely, the Justice Department is apparently considering recommendations of reprimands and even disbarment for the involved attorneys. (See the Wall Street Journal http://online.wsj.com/article/SB124157214390990085.html and the New York Times http://www.nytimes.com/2009/05/06/us/politics/06inquire.html?_r=1&hp).

Maybe my legal friends can shed some light on this, but I find reprimands and disbarment to be a nonsensical approach. If the administration truly feels something illegal was done (which it doesn’t seem they do) then a legal recourse should be taken. If they don’t then how can these lawyers justly be punished? To claim that the lawyers violated some ethical, but not legal, standards is absurd. Legitimate policies differences and interpretations of the law cannot and should not be ex post punished because one administration feels differently than the prior one.

The administration seems to be using reprimands and disbarment as a safety hatch to appease the anti-war liberal left. They boxed themselves into a corner by going after the Bush officials. Having seen the disastrous effects such criminal charges would have on domestic American sentiment and on our war on terror, the administration was forced to retreat. However, they still feel a need to pander to the short-sighted and morally simplistic left. If Holder was to drop the whole issue, the cries from Obama’s base would be deafening.

This seems to be a growing trend in the Obama administration. Obama overreached with a number of promises to the left; only to realize upon his ascent to power that despite all the vitriol, Bush’s policies were sound, moral, and necessary. His backpedaling on the Guantanamo issue is just one other example of this about-face. (See http://online.wsj.com/article/SB124165410800493933.html). However, Obama feels the need to balance the retreat from his campaign promises with the fanaticism of the anti-war movement, which forms a large portion of his base. If he loses their support he will have little to stand on. This has prevented him from admitting that he ran his campaign on false pretenses. It also prevents him from correctly portraying the morality behind such techniques (See my discussion here http://anewrepublican.blogspot.com/2009/04/whats-wrong-with-waterboarding.html). This is most unfortunate because Obama is in the best position to open a national discussion of morality. Instead he simplistically claims that we need to take a non-existent ‘moral high ground’. What he really means is that he and his cronies are far too uncomfortable discussing complex moral issues. For this he is willing to scapegoat those brave enough to protect our country.