"The Bush administration made its worst errors in judgment when it determined that the laws simply don’t apply to certain people. If we declare presumptively that there can be no justice for high-level government officials who acted illegally then we exhibit the same contempt for the rule of law."
"There are those who will press for criminal prosecutions, but this should be resisted.
It is a hallmark of a sane and moderate society that when it changes leaders and regimes, those left behind should be abandoned to the judgment of history. It is in savage societies that the defeat of a ruling faction entails its humiliation, exile and murder.
In contrast, by turning away from show trials and from the persecution of even the worst of their past regimes’ miscreants, new democracies like Spain and South Africa showed that they had moved decisively beyond a politics of hate and revenge. To South Africa and its Truth and Reconciliation Commission compare the barbarism and desolation of Robert Mugabe’s Zimbabwe.
Think too of the succession of Roman emperors, of the Soviet Union of Lenin and Stalin, or of the night of the long knives when Hitler eliminated his closest associates and rivals. It is only an exaggeration to see the urge to criminalize our soon-to-be-former leaders, to make into courtroom drama the tragedy of the last eight years, as an extension of this same practice."
Question: does Charles Fried think that all criminal trials are like the Night of the Long Knives or the Stalinist purges? Did he think this while he was Solicitor General? Does he think that in our effort to move beyond the barbarism of Mugabe's Zimbabwe, we should stop trying thieves and rapists, and punish murderers without giving way to the 'hate and revenge' of the criminal justice system? Or is it only politicians whose trials cannot be distinguished from the 'humiliation, exile and murder' of the vanquished?
"But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf. And the same is even truer of the lower-level officers who followed their orders. (…)
If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all."
mit crimes for comprehensible purposes. Women sometimes kill husbands who beat them, seeing no other way out. People steal to buy their children food or medicine. The fact that in so doing they show an "insufficient sense of moral restraint" is not relevant to the question whether they committed murder or theft.