The Case for Prosecuting Bush

"This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

"The United States is a nation of laws. My administration will always act in accordance with those laws, and with an unshakable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again."
President Barack Obama

The above quote is from President Obama’s recent statement explaining why he has decided not to have the federal government prosecute Bernard Madoff. President Obama saw clearly that what Bernard Madoff did, however illegal, was in the past. For that reason, he said, "Nothing will be gained by spending our time and energy laying blame for the past." The key, he said, is "to move forward with confidence" that there will be no Bernard Madoffs in our future.

Moreover, emphasized Obama, the "United States is a nation of laws." Because it’s a nation of laws, it should be obvious to anyone that the way to keep it a nation of laws is… not to enforce the law. If you can’t see that, then you’re someone who has "strong views and emotions" and, perhaps worse, you might even be a member of the far Left.

As I’m sure you’ve figured out by now, the above is a parody. And by "the above," I mean not the quote from President Obama, although he comes unwittingly close, but my first two paragraphs. President Obama was not talking about the Bernard Madoff scandal, but about the torture condoned by some policymakers in the Bush administration, including President Bush, and conducted by various government employees.

I think we can have a reasonable discussion about whether CIA officials who were "just following orders" should be held accountable for law-breaking. But what do we say of the people who gave the orders? Even they might be able to make a case that what they were doing was not illegal, but then let’s have them make that case – in front of a federal judge.

I don’t automatically assume that some Bush administration officials were breaking the law by giving the go-ahead to torture. I think they were breaking the law, but I’m not sure. But when there’s a fair amount of evidence to suggest that someone might have broken the law, the usual next step (I’m not a lawyer, so forgive me if I’ve missed a step) is to put the case before a grand jury to decide whether or not to go forward and prosecute.

Even if the grand jury, true to form, has very low standards for deciding whether to prosecute, why should politicians be exempt from living in the same legal world that the rest of us inhabit? They’ll still be able to make their case before a judge and, I’m sure, will have no trouble raising millions of dollars from misguided (in my opinion) patriots who will generously contribute to a legal defense.

Why does virtually everyone take it for granted that someone like Bernard Madoff deserves to be prosecuted, while a large percent of people assume that former President Bush shouldn’t be? There’s not just one reason. Each group has its own reasons.

First, consider the media. Various people in the media enabled the torturers by not exposing them in the past few years. If the facts come out, they will look bad.

Second, as Glenn Greenwald has pointed out, some prominent major Democratic politicians are in the same boat as the media. It appears that Speaker of the House of Representatives Nancy Pelosi, for example, was briefed about torture. But she did nothing to stop it or even to object. If the facts come out even more, these Democratic politicians will look bad.

Third, President Obama is, as the quote above suggests, looking forward. But not in the way he made it sound. I think he understands that if he breaks the "gentlemen’s agreement" by prosecuting Bush administration officials, he will make it more likely that he will be prosecuted by a future administration if he breaks the law. Top politicians in the Democratic and Republican parties all understand this. That, by the way, is the problem with a government-run legal system. We depend on the good will and judgment of government officials. But many of these officials have their own strategic calculus in deciding whom to prosecute, a calculus that has little to do with our interests.

Fourth, and finally, many of us have a lower standard for government officials. This is because many of us still think there’s something special, in a good way, about government. Economist Dan Klein called Americans’ view of government "the people’s romance" [.pdf]. When most people find out that government is doing something, anything, they typically assume good rather than self-interested motives on the part of government. Self-interested motives in the private sector usually are good motives because, as Adam Smith pointed out, self-interest leads us to serve others. But the government sector has no such check. It’s common, for example, for policemen, after they’ve shot an innocent victim, to be put on paid leave while their own colleagues, some of whom might even be their friends, investigate. The government sector’s version of Adam Smith’s invisible hand is – take your pick – the visible fist or the middle finger. Fortunately, we can try to change this, at least on the margin. And the way to do so is to call for some Bush administration officials to be prosecuted.

Copyright © 2009 by David R. Henderson. Requests for permission to reprint should be directed to the author or

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Author: David R. Henderson

David R. Hendersonis a research fellow with the Hoover Institution and a professor of economics in the Graduate School of Business and Public Policy at the Naval Postgraduate School. He is author of The Joy of Freedom: An Economist’s Odyssey and co-author, with Charles L. Hooper, of Making Great Decisions in Business and Life (Chicago Park Press). His latest book is The Concise Encyclopedia of Economics (Liberty Fund, 2008).

He has appeared on The O’Reilly Factor, the Jim Lehrer Newshour, CNN, and C-SPAN. He has had over 100 articles published in Fortune, the Wall Street Journal, Red Herring, Barron’s, National Review, Reason, the Los Angeles Times, USA Today, and the Christian Science Monitor. He has also testified before the House Ways and Means Committee, the Senate Armed Services Committee, and the Senate Committee on Labor and Human Resources. Visit his Web site.