Really good post by Stephen Walt over at Foreign Policy:
Am I the only person who sees a parallel between the furor over the Scottish decision to release convicted Libyan intelligence officer Abdel Basset Ali Mohmed al-Megrahi, and the heated debate over whether to investigate possible criminal misconduct during the Bush administration "torture regime?"
With respect to the former, many people are upset by the decision to release al-Megrahi -- who has terminal prostate cancer and only a few months to live -- because they do not think an act of mercy was warranted in his case. Fair enough; reasonable people can legitimately disagree about whether the dying man convicted of the Lockerbie bombing deserves any form of clemency. But the real anger stems from the suspicion that al-Megrahi's release was part of some larger deal, and that British officials traded the release for commercial or political advantages. In other words, opponents of the decision to release him are incensed because they believe government officials let broader political or business considerations interfere with an important issue of criminal justice.
Yet those who oppose an open-ended investigation into what the Bush administration did -- which might eventually lead to the prosecution of top officials -- are doing the same thing for which British officials are being criticized: they are saying that politics should outweigh the requirements of law and justice. In essence, they are saying that broader political considerations should trump the normal operations of the criminal justice system. Yet I suspect most of the people making this argument would be outraged if it turned out that the British government decided to release al Megrahi in part to cultivate Libyan business or secure other political advantages.
For a country that claims to revere the "rule of law," this really isn't a hard issue conceptually. Attorney General Holder's task is to determine whether laws may have been broken, and whether an investigation of the alleged wrongdoing is warranted. Once that investigation has been conducted, he then has decide if he has a strong enough case to warrant prosecution. If he thinks he does, the case goes forward, and defendants get their day in court. Politics isn't supposed to have anything to do with this process (though a sensible prosecutor would probably be especially reluctant to bring a weak case against prominent senior officials). Finally, if any defendants are found guilty, the president could then step in and issue a pardon, if he felt that doing so was in the best interests of the nation.
Note that it is still possible to criticize and debate every aspect of this process, but not by invoking partisanship, political expediency, or the need to "look forward rather than backward." People can disagree about whether there is enough evidence of wrongdoing to warrant further investigation (though I think the recent revelations make it hard to make the case that there is simply no basis for a further investigation). If AG Holder decides to indict anyone, or if he declines to do so, people will undoubtedly disagree about what he should have done so based on the available evidence. And if the cases go to trial we can argue about them too. If the defendants are acquitted, people will say the case should never have been brought; if convicted, some will claim they were railroaded. If people are convicted and the president pardons them, no doubt there would be heated discussions about whether this was appropriate or not.
But the key point is that if you genuinely believe in the rule of law, you can't invoke political expediency as a guide to whether possible crimes should be investigated and prosecuted. And the fact that the Attorney-General has decided to go forward should be seen as very positive sign, because it shows that he is willing to fulfill his constitutional responsibilities even if it is politically inconvenient for the president who appointed him. I have no doubt that the president would prefer to "look forward," because an investigation and/or prosecution will drive both the CIA and the right-wing media types crazy and because he's got enough alligators to wrestle with already. But he also promised us that he would end the politicization of the Department of Justice that his predecessor practiced, and Holder's decision, however inconvenient for Obama, is a reassuring sign that there is still life in the U.S. Constitution.
Am I being -- shall we say, unrealistic -- to stress the rule of law as opposed to the naked exercise of political power? Hardly. Realists have a rather dim view of human nature, which is why we like legitimate, well-ordered governments in which laws and checks and balances exist to keep human frailties in check. The Founding Fathers had a lot of realist instincts, so they constructed a variety of essentially liberal institutions to try to address and contain our worst instincts. Domestic politics in a well-ordered society is a lot nicer than life in the international system, which conspicuously lacks strong institutions and where the rule of law is weak. And that's why we ought to defend the rule of law in this case (and others), and try hard to keep politics out of the discussion.