Why I agree with President Obama that the Bush Co cabal should not be prosecuted.

[Savannahmann]

48. How do you propose to enforce this?

The physical crimes did not take place in the United States. So the very first question that would be decided is if you can charge a former President for actions taken while serving in office. That answer should come down in six years or so with an expedited challenge running it's way up to the Supreme Court. Then do the courts have Jurisdiction over the torture since it took place in foreign countries? How about tortures that took place while CIA agents watched but was physically done by people at our behest?

Each question would have to be litigated through the courts, one at a time. Each question would increase the semblance of an idea that no one would ever be held to account.

Do we start by turning the CIA agents over to the nations where the crimes took place? If so, we should begin by immediately handing Robert Lady over to the Italian Government as he has been convicted of kidnapping and torture in their courts.

We can't hand Bush and the rest over to the ICC, as we've never signed onto that body. If President Obama did so today, it would not be ratified by the Senate which means it would never be enacted.

I suppose we could hand them over to foreign courts for trial. Of course, when that happened then when President Obama left office, Air Force One would have to fly him to be tried in the nations we have used Drones to bomb people in. I'm guessing Syria would love to try the President, the fight over who was first would probably take a while, possibly even start another World War. Not my first choice.

So we're back to the American Courts. The Constitution says that serving Congressmen can't be arrested, but it doesn't give those protections to the President. However, for High Crimes and Misdemeanors, it does lay out one penalty. Impeachment. Bush Co and the rest are out of office. So the question will go to the Supreme Court on if the Founders intended to try Presidents, former and present, in the Courts. Figure, five more years on that question. Perhaps we'll put all the questions in one big case and work it up to the Supreme Court. Best guess is a coin toss. But for the sake of argument, let's say that the Court rules that the only accountability that a President can face is impeachment, what then? We have just codified the above the law position of the President as a matter of constitutional precedent. That means that no President could ever be tried for their crimes. Not exactly the precedent I want to see created, but I'm game if you are to roll the dice.

Option two of course is the decision that the Courts can in fact try a President at any time. Then at any moment some Federal Judge can order Federal Marshals to go and arrest the President for anything. That scares me more than codifying the above the law position of the President, and I'd hope that image worries you as well. Sure the arrest warrant can be overturned by a higher court, but do we want the President hauled off on the whim of some Federal Judge?

The best course of action I can see, the one with the best chance of success is to start with a clean slate. From here on, no more of this crap. Passing laws to prohibit it and offer severe penalties for any who do it. It would probably require limits to the Presidential Power, but that's something we can discuss with the legal experts. The point is that we have to change the course we plotted during the Truman Administration where we expected and empowered the CIA and other intelligence agencies to do bad things.

That course has been exposed to the public many times, but we've never challenged the underlying assumption, that the only way to stop bad people, be they rogue terrorist assets, or unfriendly governments, is by throwing the rule book out the window and operating outside the law. I disagree with that assertion, and I think we need to first address that assumption before we start with the show trials that I have no idea how to hold.