Cross Posted at Legal Schnauzer
Former Alabama Governor Don Siegelman, the most high-profile victim of a Bush-era political prosecution, had a strong reaction to recent news that advisors to Barack Obama feared a coup if the administration pursued prosecutions for war crimes.
Obama’s team likely also feared reprisals if they pursued accountability on other justice matters, such as political prosecutions and the unlawful firings of U.S. attorneys. That means the White House, under a Democratic president, is more or less saying to Siegelman and others, “The rule of law doesn’t apply to you.”
Not surprisingly, Siegelman finds such a position abhorrent, and that comes through clearly in his guest editorial at the D.C.-based Justice Integrity Project, led by Andrew Kreig. The Siegelman column is titled “The President Needs to Engage his Moral GPS,” and it raises serious questions about Obama’s reluctance to lead on issues of profound importance.
Clearly if one’s moral compass is locked in, the decision is easy to make that the United States does not tolerate torture as a means of interrogation. The President should have pursued those responsible for implementing torture as a means of interrogation, and could have explained to the country that this is something that we must do, in order for countries throughout the world, and peoples throughout the world, to once again have respect for the United States. He could explain to the people of the United States that his decision to pursue those responsible for torture was going to be unsettling to some high-ranking officials, both in the military and those in the former Bush Administration.
If he had done that, if he had laid that predicate to the American people, then it would have been less likely that those who were contemplating retaliating against the President for his investigation of torture would have followed through with their threat. But even if they did, then the fight for what is right and just and in the United States’ best interest would have been clearly delineated, laid out before the American people, and the American people would have sided with the President in his fight for truth.
In short, Siegelman says, Obama should have been upfront with the American people. But he still has not done it on a variety of justice matters, and it has chipped away at the administration’s moral authority. Siegelman particularly is outraged by the 2009 case of Pottawattamie County v. McGhee, in which the Obama Justice Department argued there is “no freestanding right not to be framed.” Writes Siegelman:
It’s clear that President Obama [decided] to let [then-Solicitor General] Elena Kagan send her deputy in to the U.S. Supreme Court on January 4, 2010, to argue that United States citizens do not have a Constitutional right not to be framed. Said in another way: That the United States government can frame people, knowingly, and intentionally, and willingly, in order to inspire prosecutors to do their best to fight for those things that they think need to be prosecuted.
I think that’s a wrong-headed, illogical, immoral position. Yet the President took that position when he allowed the United States government to make that argument to the Supreme Court.
This was in the case of those two black men who served 25 years for a crime they did not commit. They were framed by prosecutors and investigators in Iowa because the investigators and the local prosecutors didn’t want to go after a white suspect. They were able to get a young felon to testify against these two black men in exchange for a bribe–in exchange for a government-sanctioned bribe–that they would cut this young felon a deal on his sentence if he would be willing to lie about these two black men and help the government convict them. He lied, they got convicted, served 25 years, and then were out suing for damages.
Obama is in danger, Siegelman writes, of having a failed presidency on justice issues–and maybe more:
The President needs to engage his moral GPS. He needs to get his moral compass locked in–while there’s still a chance to recoup some value for himself and some legacy of his Administration that all of us can be proud of.