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If Criminal Penalties Are Removed, What Will Deter Lawbreaking by Political Officials?

Glenn Greenwald

The Washington Post's Ruth Marcus today perfectly expresses the consensus view of establishment Washington regarding the exemption which political elites should and do enjoy from the rule of law, and, in doing so, she unintentionally highlights -- as vividly as possible -- the glaring flaw in this mentality.  Marcus reviews the life of Mark Felt, the number 2 FBI official under J. Edgar Hoover who died this week.  Felt is most famous for having been Bob Woodward's "Deep Throat" source in the Watergate investigation but, as Marcus details, he was also convicted in a 1980 criminal trial for having ordered illegal, warrantless physical searches of the homes of various friends and relatives of 1960s radicals.

Less than 24 hours after Felt was convicted, he (along with an FBI co-defendant) was pardoned by Ronald Reagan, who justified the pardon by citing Jimmy Carter's pardon of Vietnam War draft evaders and then saying, in words obviously relevant now to growing demands for prosecution of Bush officials: 

We can be no less generous to two men who acted on high principle to bring an end to the terrorism that was threatening our nation. . . .

[The men's convictions] grew out of their good-faith belief that their actions were necessary to preserve the security interests of our country.  The record demonstrates that they acted not with criminal intent, but in the belief that they had grants of authority reaching to the highest levels of government.

Marcus quotes Felt's Special Prosecutor, John Nields, as angrily protesting Reagan's pardon, pointing out that central to our form of Government is the proposition that our highest political leaders are constrained by the Constitution and the rule of law -- a principle Reagan subverted by protecting these criminals.

Like the good, representative establishment Washingtonian that she is, Marcus announces that -- when it comes to the growing controversy over whether Bush officials should be investigated and prosecuted for their crimes -- she "find[s herself] more in the camp of Reagan than Nields."  Her reasoning is a perfect distillation of conventional Washington wisdom on this topic:

I understand -- I even share -- Nields's anger over the insult to the rule of law. Yet I'm coming to the conclusion that what's most crucial here is ensuring that these mistakes are not repeated. In the end, that may be more important than punishing those who acted wrongly in pursuit of what they thought was right.

Leave aside Marcus' revealing description of government crimes as "mistakes."  Even on its own terms, even if one accepts her premise that Bush officials broke the law "in pursuit of what they thought was right," this argument makes absolutely no sense.  In fact, it is as internally contradictory as an idea can be. 

Along with the desire for just retribution, one of the two principal reasons we impose penalties for violations of the criminal law is deterrence -- to provide an incentive for potential lawbreakers to refrain from breaking our laws, rather than deciding that it is beneficial to do so.  Though there is debate about how best to accomplish it and how effective it ultimately is, deterrence of future crimes has been, and remains, a core purpose of the criminal law.  That is about as basic as it gets.  From Paul Robinson, University of Pennsylvania Law Professor, and John Darley, Psychology Professor at Princeton, in "The Role of Deterrence in the Criminal Law":

For the past several decades, the deterrence of crime has been a centerpiece of criminal law reform. Law-givers have sought to optimize the control of crime by devising a penalty-setting system that assigns criminal punishments of a magnitude sufficient to deter a thinking individual from committing a crime.

Punishment for lawbreaking is precisely how we try to ensure that crimes "never happen again."  If instead -- as Marcus and so many other urge -- we hold political leaders harmless when they break the law, if we exempt them from punishment under the criminal law, then what possible reason would they have from refraining from breaking the law in the future?  A principal reason for imposing punishment on lawbreakers is exactly what Marcus says she wants to achieve:  "ensuring that these mistakes are not repeated."  By telling political leaders that they will not be punished when they break the law, the exact opposite outcome is achieved:  ensuring that this conduct will be repeated.

* * * * *

Just contemplate how stupid and irrational everyone would think a person was being if they wrote an article advancing this argument:

Much more important than punishing murderers or getting caught up in protracted disputes about prior murders is the need to prevent murders from occurring in the future.  Therefore, we ought to abandon our quest to impose punishments on people who get caught having murdered someone.  To expend resources trying to punish murderers is to squander vital resources on the past, to waste energies that could instead be more productively devoted to preventing future murders.

There are too many important challenges we face to waste time bogged down litigating past murders.  Let's allow murderers to go unpunished so that we can move beyond the past and concentrate instead on the more important priority of minimizing the number of murders in the future.

The argument, of course, is self-refuting.  If we adopt a policy of not punishing murderers, we will obviously not be preventing future murders.  We will be doing the opposite:  ensuring and even encouraging a massive increase in murders, since people will know that they are now free to do it with impunity.  The prime barrier to most crimes -- the main deterrent -- is the threat of criminal punishment, of a lengthy prison term.  That's not true of all crimes (the criminal law has had a negligible effect, for instance, on drug usage, and may not deter poverty-motivated crimes), but it's certainly true of most serious crimes, especially by those with power.  If you abolish that punishment, then you inevitably ensure many more crimes in the future, no matter how many noble efforts you devote towards "making sure it never happens again" -- whatever that might mean.

The evidence demonstrating that this is an exact analogy to what Marcus is advocating, an exact analogy to what we've generally been doing with political leaders and are doing now, is equally self-evident.  A central observation in Marcus' column is that the controversies that have now arisen over Bush lawbreaking in the areas of interrogation and surveillance are not new.  As she points out, these are the very same controversies that we've been confronting for decades.

That's exactly right.  The same controversies over government lawbreaking arise over and over.  And why is that?  Because our political leaders keep breaking the law -- chronically and deliberately.  And why do they keep doing that?   Because there is no deterrent against it.   Every time they get caught breaking the law, the Ronald Reagans and Ruth Marcuses of the world step in to insist that they should not be punished, that the criminal law is not for elite leaders in political office, that those involved in the noble function of ruling America are too intrinsically well-intentioned to warrant punishment even when they commit crimes, that it's more important to look forward than back.  


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Every time we immunize political leaders from the consequences of their crimes, it's manipulatively justified in the name of "ensuring that it never happens again."  And every time, we do exactly the opposite:  we make sure it will happen again.  And it does:  Richard Nixon is pardoned.  J. Edgar Hoover's lawbreakers are protected.  The Iran-contra criminals are set free and put back into government.  Lewis Libby is spared having to serve even a single day in prison despite multiple felony convictions.  And now it's time to immunize even those who tortured detainees and spied on Americans in violation of numerous treaties, domestic laws, and the most basic precepts of civilized Western justice.

* * * * *

If someone wants to argue that America is too good and our Washington elite too important to allow our powerful political leaders to be subjected to the indignity of a criminal proceeding, let alone prison, they should argue that.  As warped as that idea is, at least it's candid and coherent.  It's the actual animating principle driving most of this. 

But this claim that we have to immunize political leaders from the consequences of their lawbreaking in order to -- as Marcus wrote -- "ensure that these mistakes are not repeated" is manipulative and Orwellian in the extreme.  It's contradictory on its face.  It's just a Beltway buzzphrase, a platitude, completely devoid of specific meaning and designed to do nothing but obfuscate what is really going on.

Whenever you hear that claim being made -- that what matters is not punishment, but ensuring that it never happens again -- notice that none of the Serious guardians who advocate it ever, ever answer or even acknowledge this question:  other than punishing people for breaking the law, how is it even theoretically possible to ensure it doesn't happen again in the future?  We already have unambiguous laws in place with substantial penalties for violations.  We already impose disclosure obligations, and substantial oversight duties on the Congress and courts. 

All of these laws and safeguards were blithely disregarded and violated.  Other than making sure that leaders know they will be punished -- like all Americans are -- when they break the law, how and why does anyone imagine that we can ensure this "never happens again," especially as we simultaneously affirm -- yet again -- that political leaders will be exempted from the rule of law if they do it?  What's the answer to that?


UPDATE:  The opening address of Robert Jackson at the Nuremberg Trials is undoubtedly one of the most important speeches of the last century.  It established the basic precepts of Western Justice.  War crimes, Jackson observed, are such that "civilization cannot tolerate their being ignored, because it cannot survive their being repeated."  And, contrary to the blatantly self-contradictory claims from today's Washington elite, he pointed out that the only way to ensure they don't happen again is through real accountability and punishment:

The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power . . . .

It's irrelevant whether crimes rise to that same level or are of the same magnitude.  These were principles of justice that were supposed to endure and govern how we conducted ourselves generally, beyond that specific case.  In fact, Justice Louis Brandeis, 20 years earlier, observed that it's probably more important -- not less -- to enforce the rule of law when government leaders commit crimes than when ordinary Americans commit them:

In a government of law, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.

We haven't just forgotten these principles.  We're deliberately -- consciously -- choosing to renounce them.


UPDATE II:  At Talk Left, Armando points out one other towering, destructive flaw in Marcus' "logic" -- logic which, I want to re-iterate, is worth examining only because it's the predominant mentality in the Washington establishment.  As Armando writes:

[Marcus] claims her ambivalence stems from "How much can and should government infringe on personal privacy and individual liberties in the name of guarding against risks to public safety? What should be the role of criminal law when government officials overstep permissible bounds in the name of national security?"

The answers to these questions are so obvious that it strikes me again that Ms. Marcus is providing us the question 'is she an idiot or a malevolent dissembler?' Those questions are answered by the laws we make. This is called democracy Ms. Marcus. The permitted level of government infringement on liberty is that which our laws and Constitution allow. No more. If we wish to give away our freedoms, we do it by lawful means. To grant the Executive Branch the power to determine which laws to follow is precisely what the Founders fought against.

Why does that even need to be pointed out?  We already weighed the competing considerations between freedom and security and then enacted laws which authorized certain behaviors and criminalized others.  If that balance should be altered, the solution -- in a society that lives under the rule of law -- is for the laws to be changed democratically, not for political leaders to decide at will and in secret that they will break those laws and then argue after the fact that the laws they broke were bad ones.  Political leaders aren't vested with lawbreaking power.  To the contrary, the Constitution explicitly requires that they "faithfully execute" those laws, not violate them at will.

Isn't this all so painfully basic?  When the predominant Beltway argument is stripped of euphemisms, it amounts to nothing less than the claim that our political leaders should be -- and are -- free to break our laws.   And that's the system we've adopted.  It's why Dick Cheney feels free to smugly admit in public that he authorized these war crimes.   He knows that the Ruth Marcuses of the world will intervene to defend him.  Still, it's one thing to argue that American political leaders should have the power to commit crimes. It's another thing entirely to advance the insultingly deceitful and Orwellian claim that doing so is necessary so we can focus on preventing similar lawbreaking in the future.

Glenn Greenwald

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a former staff writer and editor at First Look media. His fifth and latest book is, "No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State," about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Glenn’s column was featured at Guardian US and Salon.  His previous books include: "With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful," "Great American Hypocrites: Toppling the Big Myths of Republican Politics," and "A Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency." He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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