Why Abandoning the Rule of Law to Avoid a "Political Food Fight" is the Height of Cowardice

Initially, I thought President Obama should stay away from prosecuting Bush administration torturers because of the predictable way the media would portray it - as a partisan move that would distract from healthcare, getting the economy back on track and other important national priorities. But after reading Glenn Greenwald's blog over the past year or so, I've come around to his view that the rule of law cannot ever be subservient to political expedience lest the exception overwhelm the rule. If Bush admin officials committed war crimes, but should be let off the hook for political reasons, then by that same argument no one with sufficient power or popularity should ever be charged with a crime. The rule of law then applies only in cases where the accused is sufficiently powerless that few will be inconvenienced should he be brought to justice.

Aside from the transparent hypocrisy and immorality of this view, it also has long-term political ramifications. By refusing to endure the political discomfort brought about by prosecuting the powerful when they have broken the law, we will encourage increasing lawlessness by the politically connected until the system breaks. This is much like what happened in the financial industry after Enron collapsed - by not reforming the rules after corporations defrauded investors out of billions, we permitted the banks to defraud the taxpayers out of trillions. So even leaving aside the obvious moral argument, the Chuck Todd, avoid-political-food-fight politics is a long-term loser on its own terms.

But even if one is unconvinced letting the powerful off the hook for crimes will eventually lead to even more severe abuses - and we assume, as Todd does, that no matter how strong the moral case is for holding torturers accountable it pales in comparison to the likely political fallout - the question then is where does one draw the line?

Because in 1860, abolishing slavery required more than a political food fight. It was a fight with bullets and bayonets and one in which more American soldiers died than in any before or since. So if high-ranking officials should be allowed to torture and murder the innocent and guilty alike without consequences merely because of a potential political food fight, then slave owners should surely have been allowed to deprive their fellow man of even the most basic freedoms if the consequence of challenging that was our nation's bloodiest war.

When you think about it, Todd's dreaded political food fight - which might or might not happen and if it did to what extent it would actually derail our national priorities is pure speculation - is kindergarten stuff compared to the Civil War. But how many educated, thoughtful people, regardless of political affiliation, would rather we not have fought it? For Todd then (and perhaps Obama) to be willing to abandon the rule of law for fear of a food fight is cowardice beyond belief. If Chuck Todd were practicing what now passes for journalism in the 1850s, what are the chances he'd be for the abolition of slavery when the fallout would be a crippling Civil War? If Obama is unwilling to see justice done and human rights respected for fear the political fallout would be unpleasant, why even bother with the pretense of viewing Abraham Lincoln as a historical role model?

I instinctively trust Obama and believe he's a good man. But his refusal to fight for what is transparently right and just to anyone with even a quarter of his knowledge of constitutional law is deeply troubling. I hope that he's somehow still playing what Andrew Sullivan called "the long game", but the evidence for that is diminishing.