A Really Bad Precedent?

There is no doubt that President Obama is assured an important place in history, especially in Presidential history. Just being the first Black President is enough to enshrine him in history. Now there is also his announcement about supporting Gay marriages, along with his support of Gay rights in general. He was also the first President to actually manage to bring change to our terrible system of health care, improving it if even only partially, no other President managed to do that for several generations. Ending Don’t Ask, Don’t Tell in the Military will also no doubt resonate in our history. Whether you admire Obama or not, his position in history is already secure, even if he were to do nothing more than what he has already accomplished.


But there is another decision Obama made, along with his Attorney General, a decision no one seems to want to discuss, that may become far more historically important than any other. I am referring here to his decision to not investigate or prosecute the Bush/Cheney war crimes. That may prove to be a truly bad precedent. It is true, of course, that in general no incoming Administration has ever seriously investigated or prosecuted its predecessor. This makes sense, in general, as the transition from one administration to another necessarily needs to be relatively trouble free to preserve social solidarity and keep the nation running smoothly. It would not do if every new administration attempted to investigate the behavior of its predecessor and thus kept government in a situation of constant disruption. The Clinton administration did not investigate the senior Bush performance, the “Dubya” one returned the favor, and so on. This is not to say previous administrations were not without serious flaws, even possible criminal or unconstitutional behavior, merely that there seems to have always been a kind of “Gentlemen’s Agreement” to “let bygones be bygones.” This is all well and good in a sense, except in the case of the Obama administration that was confronted with a completely unprecedented situation. The previous administration was obviously guilty of obvious, even admitted, war crimes.

I am not a lawyer or constitutional scholar but I am pretty certain that in terms of U.S. law and the Constitution the President and his Attorney General are required by law to pursue and prosecute war criminals, and the failure to do so is in itself a crime. Thus Obama and Holder are themselves criminals under the law. I believe it is perfectly understandable why Obama did not elect to investigate Bush/Cheney. There is no doubt in my mind this would have literally torn our country apart, probably for a very long time, a situation clearly best avoided.

But if only for sake of the argument, what would happen if the next administration decided not to honor this gentleman’s agreement and did choose to investigate Obama and Holder? They could be found guilty of war crimes for not prosecuting Bush/Cheney and, ironically, Bush/Cheney could escape punishment even though they were the most guilty. My point here is not that this is going to happen, but, rather, what happens if it does not. It would mean that two generations of Presidential war criminals were allowed to go unpunished, creating a disturbing precedent for the future. Are we to allow our Presidents and Attorney Generals to continue committing war crimes safe in the knowledge they will not be prosecuted? Ignore for the moment the possibility that Obama/Holder may be responsible for war crimes unrelated to their failure to prosecute Bush/Cheney. Their failure to prosecute Bush/Cheney has set a precedent that truly should not be allowed to stand, but it is. Virtually the entire world knows that Bush/Cheney are guilty of war crimes, and they now also know that Obama is allowing them to go unpunished. If Obama, too, is allowed to go unpunished, it will be clear that the United States will prosecute war criminals wherever found, except here at home in the U.S. Our hypocrisy has now been exposed for all to see and understand. So where is this to stop? Or is it to stop? Is it now just a “fait accompli” that will set the standard for the future?

I find it difficult to decide that Obama/Holder did the wrong thing by deciding to “look only to the future,” and thus avoid what would have been a truly bitter example of internecine strife that would have doubtless paralyzed the country for a long time. But the same thing will be true if the next administration also passes on the prosecution of war crimes. So at what point, if ever, will this situation end? Will our highest officeholders be allowed to continue to flaunt national and international laws at will? Obama/Holder have established an understandable but terrible precedent that is going to haunt us for years to come. An apology is not going to suffice.

He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

Thomas Paine