When Governments Break the Law: The Rule of Law and the Prosecution of the Bush Administration by Austin Sarat & Nasser Hussain

Author:Austin Sarat & Nasser Hussain [Sarat, Austin & Hussain, Nasser]
Language: eng
Format: epub
ISBN: 9780814741399
Goodreads: 9336808
Publisher: New York University Press
Published: 2010-10-20T00:00:00+00:00

4

The Spider’s Web

How Government Lawbreakers

Routinely Elude the Law

STEPHEN HOLMES

Laws are like cobwebs, which may catch small flies,

but let wasps and hornets break through.1

A debate is raging, and not only within this volume, about the wisdom of prosecuting Bush Administration officials for serious violations of the law, domestic and international. Both opponents and advocates of prosecution make dire predictions about what will happen if their conflicting imperatives are not heeded. Conservatives allege that any prosecution of illegal behavior by counterterrorism officials will disarm the country in the face of its deadliest enemies; liberals retort that a failure to prosecute will fatally weaken hitherto robust principles of the American legal and political system.2 This debate is theoretically fascinating and politically resonant, but it remains somewhat disconnected from historical realities.

High-ranking American officials have never been held legally accountable for lawbreaking in the pursuit of public safety, as they have understood it. Seen in historical perspective, letting cabinet-level and White House officials off the hook or slapping their wrists, despite ample evidence of illegal behavior, is no aberration, but exactly what we should (and do) expect. Thus, the fears and the hopes that swirl around the current debate are equally misplaced. If the past is prologue, no high-level Bush Administration officials will be successfully prosecuted for serious violations of indelible rights. Perjury convictions remain a hypothetical possibility but even they seem improbable. Nor is any high-level Bush Administration official likely to be successfully sued for money damages. Incredibly, progressives are now reduced to pleading for some kind of commission of inquiry, simply to establish a clear historical record of what laws were broken by whom and for what reasons. And even such an anodyne form of accountability seems unlikely to materialize, at least not anytime soon.

American officials may have committed war crimes; but the Nuremburg precedent is obviously irrelevant to their misdeeds, since the great power they recently governed has not been militarily conquered and occupied by a foreign power. So what about domestic law? Seldom do countries try and convict their own top leaders for war crimes. Not having been installed by the Nazis against the will of the vast majority of his country’s citizens, Dick Cheney will not be punished by his countrymen in the manner of Quisling. Not facing victor’s justice administered by the Soviet Union’s local proxies, he will escape the fate of the leaders of Hungary and Slovakia after World War II. And not having ordered the killings of citizens and inhabitants of his own country, Cheney will not end up like Alberto Fujimori or Augusto Pinochet. Thus, after asserting forcefully that “Investigators need to be allowed to follow the evidence all the way to the top—into the White House, if that is where the trail leads,” an influential liberal columnist immediately concedes that his imaginary campaign for accountability is bootless: “I’m under no illusion that George W. Bush or Dick Cheney is actually going to be prosecuted by the Justice Department.”3 Ideal justice is one thing, political reality is another.

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