Eric Holder has resigned as attorney general. Like Barack Obama, he has spent his entire term engaged in partisan battles. Jonathan Turley writes that Holder was too political, that he should have paid more attention to the Constitution. This is good advice if you make a living speaking about the Constitution and arguing cases based on Constitutional law. It's not such good advice for someone in the political maelstrom of Washington.
Turley chastises Holder for not bringing charges against Bush and Cheney for violations of international treaties, in particular the Geneva Convention against Torture. Obama already stated that he considered waterboarding to be torture and ordered that it not be used. The Bush administration had withdrawn the documents (written by John Yoo) that justified torture. The goal, therefore, of outlawing torture had already been achieved.
Turley, and many others, wanted more: an indictment and trial of top Bush administration officials for their violation of international law. Turley does not state the major impediment to this plan, namely the high cost in time and treasure to pursue it. Obama understood at the beginning of his first term that he would have only two years to pass his agenda. He had to make some hard choices and chose to work on health care reform.
Obama and Holder could have worked on trying members of the Bush administration for war crimes. The Geneva Convention specifies that the country whose leadership had committed the crimes should try them. But Obama would have required a strong mandate of the people to get a conviction, and he did not have one. The majority of the population still believed that waterboarding was not torture and that Bush had not involved the country in a war of aggression. All the defendants in such a suit would be wealthy men who could afford high-priced lawyers. The trial would take years and the appeals might take decades.
In addition to all the other problems with a war crimes trial, all the lower level employees of the CIA could claim that the government's lawyers had advised them that waterboarding was legal. Only upper-level government attorneys could be indicted for falsely declaring that torture was legal. Obama decided not to indict John Yoo and William Buzbee, the two Justice Department Lawyers who acted as shills for Vice-President Cheney. Their conviction would have led to indictment of many CIA agents, and Obama made it his mission to heal the agency after it had been demoralized by the war.
Turley called for Holder to be "fired" when he claimed that Holder's primary offense was not being ethical enough to follow the Constitution instead of following his boss's orders. Holder did not break any laws, since the actions he took to find whistle-blowers were sanctioned under the Espionage Act of 1917. Turley has arguments about the constitutionality of the Espionage Act, but Holder broke no laws when he subpoenaed journalists' records to find leaks in the Justice Department.
Turley believes that Holder should have ignored the political consequences of such an agenda, as well as the orders of his boss, the President. This would not have been possible for anyone to do, even though Turley believes the Constitution required it. The Constitution has no power to enforce itself; it is a scrap of paper. The executive can ignore it with impunity. His subordinates must obey or resign, but if they resign they lose any opportunity they may have to do good for the community.
Holder may have made mistakes, but they were the kind that only office-holders can make. As a professor and lecturer, Turley can afford to be ethical and condemn others for their lack of ethics. As an office-holder, Holder cannot.
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