Barack Obama is sliding toward one of the most dangerous decisions of his administration--and very possibly one of the most dangerous in the history of the American republic.
This week, Obama opened the door to possible prosecutions of former Bush officials. If the President's words represent his intentions, this country may be about to plunge into a cycle of partisan reprisal that will make the years from Watergate through the Clinton impeachment look like a golden age of good feelings.
Until recently, Obama has resisted all urgings from the more partisan Democrats to institute legal proceedings against former members of the Bush administration. As recently as Sunday, in an interview with George Stephanopoulos, White House Chief of Staff Rahm Emanuel restated this view:
Stephanopoulos: "What about those [in the Bush administration] who devised policy?"
Emanuel: "Yes, but those who devised policy, he [Obama] believes that they ... should not be prosecuted ... It's time for reflection. It's not a time to use our energy and our time in looking back and any sense of anger and retribution."
Then on Tuesday, at a press conference alongside the king of Jordan, the President seemingly reversed course:
Obama: "With respect to those who formulated those legal decisions, I would say that is going to be more of a decision for the attorney-general within the parameters of various laws, and I don't want to prejudge that. I think that there are a host of very complicated issues involved there."
Now it's very possible that there is less here than meets the eye. The President may be looking for a gentle way to say "no" to his party's angry wing: Punt the issue to the attorney-general, wait six months for emotions to cool, then decline to take action.
But if Obama's words mean something more, we are all heading for a world of trouble. Since Watergate, American politics has moved into a new era of the criminalization of politics. Special prosecutor begets special prosecutor in a cycle of reprisal that has by now embittered the lives of dozens of former administration officials in the two parties.
Until now, however, this revenge cycle has had one limit: It ends when the administration under attack ends. The Clinton administration did not prosecute Reagan and Bush officials; the Bush administration did not act against Clinton officials.
Now Obama is musing about extending the political reach of the criminal law. If he does so, he will find he has opened a new front of political warfare that will not soon end.
After the 9/11 attacks, President Bush drew a curtain of oblivion against all the errors and mistakes that had led up to the attacks. There was accusation and counter-accusation in the media, but at the official level there was no recrimination against president Clinton's decision not to kill bin Laden when he had the chance, no action against those who had failed to stop the 9/11 hijackers from entering the country.
If Obama proceeds to take legal action against those who did what they thought was right to defend the country, all that will change. Prosecutions launched by Obama will not stop when Obama declares "game over." If overzealousness under Bush becomes a crime under Obama, underzealousness under Obama will become a crime under the next Republican president.
Revenge will be exacted for revenge, the costs of government service will escalate, mobilizing cross-party support will become practically impossible for any important action and the political life of the American republic will take another step toward the play-for-keeps destructiveness of the last days of the Roman republic.
It's a nightmare future. Let's banish the possibility now. President Obama needs to do three things: --If he wants an investigation, he should follow the precedent of the 9/11 commission, whose mission was confined to fact-finding only. --He should declare unambiguously now: There will be no prosecutions, period. --He must serve notice on the European allies: Attempts in Europe to engage in local proceedings against Americans for official acts during their service in government will be regarded as unfriendly acts for which costs will be exacted across the full spectrum of government-to-government relations.
Obama's promises of unity and change could have meant--could still mean--a departure away from the tit-for-tat use of law as a weapon of politics of the previous generation. If however it turns out to mean an escalation of the use of law, be warned: This is one escalation that will not soon be de-escalated.
David Frum is a resident fellow at AEI.