Why does this need to be said?
Glenn Greenwald, in today's excellent (and devastating) post, makes this unremarkable statement:
People like John McCain argue that only "banana republics" prosecute former political leaders, but the reality is exactly the opposite.Indeed. Why doesn't the so-called "liberal media" point this out? It is only in a country where the rule of law doesn't hold that "former political leaders" are given a pass ... by dint of being "former political leaders". There, politics is a consideration as to whether someone is "guilty". In a sane and legal state, politicians are treated the same as anyone else ... and if they committed crimes, they are punished.
Granted, a "banana republic" may also prosecute some former political leaders even if no crime was committed ... for political reasons as well (once again, because "politics is a consideration as to whether someone is 'guilty'"), but their failings there are hardly any expiation of the sins of unaccountability for those that escape prosecution because of political considerations. McCain's statement assumes implicitly that no "political leaders" ever commit crimes (except perhaps in "banana republics", but there he assumes that such leaders do get prosecuted). This assumption in not warranted.
Entirely in accord with Glenn's point, we have this from Michael Dorf:
Criminal charging decisions are indeed partly a matter of reading the applicable laws. But prosecutors, including the Attorney General, also have discretion, and it is hard to imagine that political considerations would not play some role in the determination whether to seek indictments arising out of the detainee abuse.Yes, indeed, we have to look at this in "context". And who can deny the political implications? And why shouldn't they be considered?!?!? To deny that is to deny reality itself....
Later, Dorf says this:
There is, in addition, a principled basis for not prosecuting the architects of the Bush detainee abuse program: In the long run, to do so could be bad for our democracy."[R]ecriminations"?!?!? How so? Isn't this assuming that the prosecutions are baseless? If so, make that case first!!!
In non-democratic regimes and fragile democracies, politics is an extremely high-stakes affair because those who win power often use that power to confiscate the property of, imprison, or even kill those who formerly held power. This is why transitions from one government to the next are so fraught outside of stable democracies.
Thus, one of the great, but often unnoticed, virtues of democracy is that it lowers the stakes of politics. Electoral losers know that they will be permitted to enter private life, or regroup and fight another political battle; conversely, winners know that they could lose the next election. Because electoral defeat is a setback but not a personal disaster, politicians across a broad swath of the ideological spectrum stay involved in the system, rather than literally attacking each other.
Prosecution of political opponents threatens to raise the stakes of politics and thus to undercut this important feature of democracy. Lengthy trials of Bush Administration officials for authorizing torture would inevitably be perceived as partisan, and would likely lead to a further cycle of recriminations....
This is confooo-gabble of the highest order. "Banana republics" and "fragile democracies" suffer from the defect that purely political prosecutions are possible there, and tear at the fabric of their nascent (or non-existent) "democracy", thus, for them, a ban on political prosecution might be justified. But we have a strong democracy. We are thus able to withstand prosecution of political figures. But we shouldn't prosecute political figures because if we do, we risk looking like the "banana republics" that shouldn't be prosecuting political figures, and thus risk becoming such a "banana republic".
... One need not think that the U.S. would actually slip into dictatorship to worry about these effects....And if we're not at risk, what's the problem? That the Rethuglicans might get back in power and do a Lewinskygate "Starr Chamber" again? Hate to break the news, Michael, but they'll do that anyway....
... In this sense, if President Obama or Attorney General Holder makes the political judgment that there is no angle to be found in prosecutions, that decision could also be fairly characterized as a matter of principle.Just those words need to be considered in their sublime essence.