23 Apr 2009

Criminalizing Policy Differences

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The Wall Street Journal correctly observes that Obama has moved the United States one long step in a very dangerous direction by pandering to his radical base with hints of possible prosecutions of Bush Administration attorneys simply for writing legal opinions.

Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret.

Policy disputes, often bitter, are the stuff of democratic politics. Elections settle those battles, at least for a time, and Mr. Obama’s victory in November has given him the right to change policies on interrogations, Guantanamo, or anything on which he can muster enough support. But at least until now, the U.S. political system has avoided the spectacle of a new Administration prosecuting its predecessor for policy disagreements. This is what happens in Argentina, Malaysia or Peru, countries where the law is treated merely as an extension of political power.

Our political system relies on the voluntary surrender of power to a newly elected government. If new administrations are going to prove dissatisfied with the power to set current and ongoing policy, and are going to make a practice of criminalizing and punishing the decisions of their predecessors, voluntary surrender of power is, to say the least, significantly disincentivized.

Sooner or later, as in Ancient Rome, a leader, like Julius Caesar, facing proscription by his political adversaries will cross the Rubicon to defend himself and his supporters, and the political system will be permanently changed.

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