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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
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
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
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
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
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.
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