"And whose fault is that? Not really his. He didn't create this situation of fear; he merely exploited it -- and rather successfully. Cassius was right. 'The fault, dear Brutus, is not in our stars, but in ourselves.'

Edward R. Murrow, William Shakespeare, See It Now, CBS-TV, March 9, 1954

And so we have it now. Laid out before us is the legal justification for doing what the United States had never before accepted as part of its national policy.


The memos are marked top secret, but they were written by people who knew they would not remain secret forever. They were written for several purposes but one of them was this: without it, the instructions from the "unitary executive" to do things that others might see to be a crime, would not be carried out for the carried with them a risk to a specific agent or public official that was too great. I may regret that I have but one life to give to my country, but I sure don't want to spend that life in prison.

And with that disclosure is the President's carefully worded statement promising that

those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.

That is how it must be if we are to have an effective government, military and capability of gathering the intelligence necessary protect our country and its citizens. Those who are required to carry out the direction of those entrusted with the authority and responsibility to manage these matters must be able to proceed as instructed without the fear that new people with other ideas will try to imprison them.

There are obvious limits to this: there is no defense to the most heinous of crimes, such as intentional murder of unarmed civilians and it is subject to prosecution and court martial no matter on whose orders it is based. As this quite helpful diary on Daily Kos discusses this is the Nuremberg issue as set forth in Principle 4:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

The issues that we must face in proceeding against those who may have violated our law or the agreements our nation has entered into with others are myriad and they are not easy. For instance, while this essay is not directed at the "unitary executive" theory, it certainly must be acknowledged that there is substantial basis for holding the President responsible for the actions of executive in carrying iut its duties, since the Constitution makes that official the "head" of that branch of government and the election of that person, or removal by impeachment by other elected representatives are the only ways in which the citizens can influence that critical function of its government.

Subordinates of the President have a few choices, but resigning rather than following direction is fairly drastic and usually will not prevent the thing one objects to from taking place. There is also something to be said for the idea that the unelected subordinate should accept the direction of the person elected to "head" the branch of government in which he or she is employed.

Your blogger is, as is obvious, a public servant. He has not been faced with the stark choices outlined in these memos but he has had a few disagreements with the elected officials under whom he has served. The way it works is that you make your point, hope the elected official listens, considers and eventually agrees with yoy, but if he or she listens and considers but eventually decides to do something else, the choice then is to do it or seek employment elsewhere. This seems simple in concept, I suppose, but it is not.

When one's objections are met by a legal memoranda written by someone whose job it is to analyze these issues one can argue with the memo and its scholarship but the decision as to which position to prevail is that of the elected official---the person selected by a democratic process to have that authority.

This space has repeatedly questioned the assertion of sovereign authority by a president whose office was intended to quite definitely not that of a king. A fair number of those comments are collected here but the reason they were written is what appeared to be an obnoxious desire by our fellow citizens and the press and broadcasters who report to them to ignore these fine distinctions to talk instead of a "president who took us to war" and to describe cabinet officers not as members of the government by possessions of the President ("Bush's Secretary of State," "Cinton's Attorney General").

How did these people take over the government? We can say that he "stole" the election in 2000, and in some ways he did, but enough people voted for him that he was able to pull it off. He may have stolen his re-election, too, but again, many people wanted George W. Bush to remain in government. If they did not know how lawless he intended to be in 2000, they certainly knew by 2004. One can ridicule Michael Moore if one wants to, but his movie was spot on, and widely viewed and talked about that year. But still he won.

So, I am not about to press for prosecutions of people who were given a memorandum by a man who is now a United States District Judge (confirmed as such by a Senate controlled by the Democratic Party) which argued that what they were being told to do was not torture. I may not agree with the reasoning of the memo, or, certainly its conclusion, but it was the product of an executive branch elected to so serve and I was not (nor were you, at least as of the time those acts took place, unless your last name is Bush or Cheney.)

I don't know what to do with said Bush or Cheney. I really don't. We do not throw people in prison for taking the wrong legal position or making a bad argument. They were responsible for fanning the flames of fear that were started by the attacks of September 11, 2001 and it was that fear, not any memos, that allowed them to do what they did and bring such disrespect on our country, but they were not impeached, nor were they evicted from office (while their friends and allies impeached the prior president for lying about having sex outside of his marriage).

They are still at it, of course. I heard Morning Joe reveal to us the "fact" that "water torture works" and know that he will not be convinced by those more knowledgeable than he, who say that it does not. His diatribe against the President hardly represents a majority view anymore, thank God, but that is a relatively new development outside the little closed community that we post on.

It is time to look inward, at ourselves and move forward. I do not advocate immunity for the President and Vice President, but I am not sure that their prosecution is the right thing either. Murrow was talking abut Senator Joseph McCarthy when he quoted Shakespeare but the quote that introduces these paragraphs apply here, too.

It was possibly the most important television program ever broadcast, that edition of "See It Now" that exposed McCarthy for the villain he was and it is worth quoting its final comments here in partial recognition of just how apt they are to this question, too:

As a nation we have come into our full inheritance at a tender age. We proclaim ourselves, as indeed we are, the defenders of freedom, wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home.

The actions of the junior Senator from Wisconsin have caused alarm and dismay amongst our allies abroad, and given considerable comfort to our enemies. And whose fault is that? Not really his. He didn't create this situation of fear; he merely exploited it -- and rather successfully. Cassius was right. "The fault, dear Brutus, is not in our stars, but in ourselves."

Good night, and good luck.