I view with utter contempt anyone who can ask this question and expect the answer to be ‘No.’ And I can’t understand any argument defending that position.

If by doing so we force those in charge to expose themselves, by trying to avoid prosecution of them and their cronies, as the corrupt, power-mad maniacs that they are, then so be it, and the sooner the illusion is shattered the better.

Fiat justitia ruat caelum.

But seriously, the Nixon admin came pretty close to doing these things, and, in the aftermaths, the congress passed that independent counsel statute. They must’ve been scared shitless.

The people who need to be prosecuted while in power are precisely the ones who will prevent anyone from prosecuting them while they are in power – and they have the power to do so. That’s why they can only be prosecuted once they are out of power.

But then, I don’t think Bush would have relinquished power after 8 years if he hadn’t believed that the military and law enforcement agents would obey the law and Constitution rather than him. If he had thought he could succeed in a coup, I’m convinced he would have attempted one, and the only reason he didn’t is because the military and law enforcement agencies had institutional loyalty to the law and Constitution which mandate term limits, rather than personal loyalty to Bush.

The idea that presidents come and go and the United States remains standing is strongly held in the United States, which is why presidents can come and go and the United States remains standing. And the first time a president decided to disregard the unwritten law that thou shalt not serve more terms than Washington, just because there was a war on, it was replaced with a written law to the same effect, which subsequent presidents have not been free to disregard.

This undermines the whole argument that we can’t prosecute Bush after he leaves power because then the next Bush won’t voluntarily leave power: the last Bush didn’t voluntarily leave power either, he did so only because he recognized that an attempt to hold it would be doomed to failure. No one with the mindset of a Bush or Cheney voluntarily leaves power, but they can recognize futility when they stare it in the face.

Yes, I think this is exactly right. The Independent Counsel office was created specifically for this purpose, but it’s been gone since 1999.

HV @10: I suspect an essential reason why the system allows for a peaceful (even if not very meaningful) power transfer is the unspoken agreement that the retiring leaders will not, under any circumstances, be prosecuted for any crimes they had committed

Blithely postponing consideration of the problems of enforcement, I suppose the solution would be to prosecute them while still in power. I think this is being done vis-a-vis the president of Sudan at the moment, if it hasn’t already been stymied. Briefly addressing those enforcement issues, I wonder how the US would react if asked to use their military as part of an actual international police, rather than the rhetorical (and rogue) cop that they have heretofore supplied? And then, moving further into the realms of extreme implausibility, how the FBI would react to an arrest warrant for a serving VP?

MB @62 the next stage would be a constitutional amendment to remove the pardon power. It would be hard to do, but routine abuse could make it happen

May I add that the power is a bizarre and dictatorial one anyway so (as with recreational drugs in the alternative universe inhabited by politicians and the MSM) any use is ipso facto abuse. It’s also a part of the overt politicisation of the judicial system in the US that means any domestic action against Cheney (et al. ad nauseam) would inevitably be seen as Obama’s doing.

Alex @64 Lord Hutton took a similar line;…that the government acted in bad faith…was itself impossible to accept
Yes, and Hutton also said it wouldn’t be appropriate to examine Blair as “there would be headlines”. Same with the Butler report into Iraq intel. Butler’s view on answering press questions regarding whether Blair’s position was tenable was described as “it was not his job to bring the government down” (i.e. he thought it wasn’t tenable but wasn’t going to say so, even if directly asked. The press obliged by not asking in the event). That kind of attitude is reflected in academic discussion, with statements like “Indicting a head of state is a political act”. It isn’t, particularly. It has political consequences, but that doesn’t mean it is a political act, any more than stillettoing Berlusconi for dishonouring your daughter would be. By contrast, deciding against prosecution, interrogation or criticism on the grounds of someone’s political position is a political act, and a corrupt one.

BTW, off topic but – A note to Henri Vieuxtemps and Martin Bento
Since you will probably both see this, I hope I can be excused for mentioning here that CT, and in particular your remarks get a prominent mention in Jewish Week’s quite well-done piece about the Malhotra/Margalit paper discussed some time ago. It also features the rare spectacle of an ADL spokesperson playing down anti-semitism claims! Also mentions Bill Kristol, one of many who have since, as expected, produced uncritical mentions and reprints of the original Boston Review article.

I remember a BBC drama series about a “radical” set of legal chambers (“Blind Justice,” starring Jack Shepherd). At the end of the first episode, two of the barristers were watching a bunch of well-to-do young things at a party, and one remarked “the law is a bulldozer driven by vested interests.” He who has the gold, and all that.

The presumption of innocence demands that juries be sceptical of prosecution evidence and demand prood beyong all reasonable doubt. Unfortunately the rights of the accused are often forgotten during periods of national crisis and it took the release of the Birmigham Six – and the gradual easing of tensions which led to the Northern Irish peace process – for the British criminal justice system to face up to how flawed it had become.

There is an interesting broader issues about Amnesty v. Justice mechanisms, ICC, etc. which I am writing a paper on at the moment.

Note that he wasn’t ‘caught with a couple of AK47s in the boot of his car’; police ‘say’ that they found a couple of AK47’s in the boot of his car. If the police are happily torturing confessions from innocent people, they simply can’t be trusted. And being shot dead by the SAS in an ambush is similarly not trustworthy, unless one assumes that the SAS/other police wouldn’t murder an innocent man and lie about it.

I’m not saying anything about the guy, because I don’t know him from Adam, but police corruption leads to those problems.