Opinion

Investigate the Bush administration?

Crime, Law and JusticeJustice SystemHeads of StatePoliticsNational SecurityTerrorismUnrest, Conflicts and War

Today's topic: Did the Bush administration break the law in its prosecution of the war on terrorism? Why or why not? Should the Obama administration investigate the Bush White House, even if such an inquiry would fuel the polarization the president is trying to tamp down? Previously, Estrich and Hewitt debated how President Obama should handle suspected terrorists captured by the U.S. once the Guantanamo Bay prison is closed.

Bush's lawyers were wrong, but they don't belong in jailPoint: Susan Estrich

Just say no, Hugh tells me, and we can make it a quick one.

OK: No.

But I'm a lawyer, so it has to be at least, "No, but," or, "No, because."

I don't approve of torture, detaining people without charges or warrantless wiretapping without some form of judicial review or approval. I don't believe that the Constitution grants the executive virtually unlimited powers even in the pursuit of the horrors of terrorism. I'm actually sentimental enough to get shivers up my spine when I hear the stories of the acting U.S. attorney general and the FBI director racing to the hospital bed of the seriously ill then-Atty. Gen. John Ashcroft in 2004 to warn him not to sign the directive the White House chief of staff was bringing over. That directive was a reauthorization of a blatantly unconstitutional assault on individual liberties and freedom in the name of fighting terrorism.

But the punch line, as we both know, is that Ashcroft didn't sign off on the White House's secret surveillance program. The president, reportedly having been kept in the dark by folks in his own administration and facing mass resignations from lawyers who belong to a different political party than I do but swear allegiance to the same Constitution, revised the program. The good guys won. The Constitution lives.

That's how the story should end. I don't need their heads. I don't believe John Yoo and his colleagues deserve to be in prison. That isn't what criminal law is about. That isn't how the system we all swear allegiance to is supposed to work.

For those who don't know, Yoo was the White House lawyer whose job it was to come up with fancy legal justifications for blatantly unconstitutional programs, which were then promoted by others. He and those who worked with him and followed his advice are guilty of twisting the Constitution -- abusing it, even. Our founding fathers -- who, unlike us, actually lived under tyranny -- took some care to prohibit it. If Yoo and company had had their way, the founding fathers' efforts would have been for naught.

But we don't -- or we shouldn't -- lock up people just because they were wrong or even because they did things that were wrong and, dare I say it, positively un-American. Criminal wrongdoing -- the way I've always taught it and the way I hope my students still practice it -- requires bad intent: not only that you do something wrong, but that you intend to. I don't think Yoo and others in the Bush administration meant to abuse the Constitution; I do think they were completely wrong in their reading of it, wrong in the programs they fashioned and, ultimately, unsuccessful (or at least less successful than they would have been) because honorable men and women, most of them Republicans, don't read the Constitution in partisan terms.

So let Yoo answer to his critics in the law reviews and the law school classrooms. Time to move on.

Susan Estrich, national campaign manager for Democratic presidential nominee Michael Dukakis in 1987-88, is the Robert Kingsley professor of law and political science at USC. She is a legal and political analyst for Fox News and a syndicated columnist.

Can Obama fight off pressure from the left?Counterpoint: Hugh Hewitt

Susan, for a liberal, you make a lot of sense, but I don't suspect you will be able to persuade your colleagues on your left that we don't need a witch hunt right now.

I don't agree with your take on the Bush administration's conduct of the war on terror. I have always thought it was dispositive that, given the opportunity to do so, a Democratic Congress never got around to declare with legislative finality that "waterboarding" would henceforth be understood to be "torture." Only recently did Atty. Gen.-designate Eric Holder so declare, and before him the nation's chief law enforcement officers refused to do so.

Studied ambiguity about what the U.S. does and does not do to unlawful combatants has always served the purpose of denying the country's enemies a blueprint for how they would be interrogated. That studied ambiguity has been interpreted by the hard left as an admission of torture rather than the mature refusal to conduct the war in public. The need to turn the folks who ran the government in the aftermath of the slaughter of 9/11 into enemies is similarly a reflexive action by people who prefer not to consider the way it was after the attacks and the way it will be again if the United States homeland is attacked in the future.

I may not agree with President Obama and his team as they move forward in their stewardship of the country. I suspect that they will make repeated errors of the same sort that Jimmy Carter made during his tenure and that we will be far worse off as a result.

But of course they will be doing their best to protect and defend the United States within the laws as they understand them. The right wing will be out of line if it attempts to criminalize the actions of the Obama administration when the wheel turns again, as it surely will. The wacky left in the U.S. that wants a witch hunt threatens to achieve a policy dominance in the Democratic Party that will haunt the party for decades to come unless it is denounced and disowned soon.

The new president would be well advised to announce that he rejects all efforts to begin the witch hunt that some on the left want and but that is completely unjustified for all the reasons you list, Susan. Whether Obama will be able to brave the disappointment of his most fervent followers remains to be seen.

Hugh Hewitt is a law professor at Chapman University and host of a nationally syndicated radio show aired in Southern California on KRLA-AM (870) and in New York on WNYM-AM (970). His two most recent books are "The War Against the West" and " GOP 5.0: Republican Renewal Under President Obama."

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