an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
John Ashcroft Worries about Torture, er, Financial Crimes
Former Attorney General John Ashcroft's oped in today's New York Times wonders aloud:
I CAN imagine the Treasury secretary’s face turning pale as he is told by the attorney general that one of the financial institutions on government life support has been indicted by a grand jury. Worse, I can imagine the attorney general facing not too subtle pressure from the president’s economic team to go easy on such companies. . . . [N]o one has discussed the inherent conflict of interest that the government created when it infused large sums of money into these companies.
The government now has an extraordinarily high fiduciary duty to safeguard the stability and health of companies that received hundreds of billions of bailout money. At the same time, the Justice Department has the duty to indict a corporation if the evidence dictates such severe action — and an indictment is often a death sentence for a corporation. The quandary is obvious. How, then, does the Justice Department bring charges against a corporation that is now owned by the government?
Indeed. And whatever are we to do if we discover that in the process of protecting our national security, government officials broke laws against warrantless wiretapping and against torture? How does the Justice Department bring charges against officials who work for the government? Ashcroft argues that in the financial context, criminal prosecutions may not be the best solution, because of collateral effects on the economy. Instead, he advocates heavy fines and careful monitoring and supervision of bad actors:
The government must hold accountable any individuals who acted illegally in this financial meltdown, while preserving the viability of the companies that received bailout funds or stimulus money. Certainly, we should demand justice. But we must all remember that justice is a value, the adherence to which includes seeking the best outcome for the American people. In some cases it will be the punishing of bad actors. In other cases it may involve heavy corporate fines or operating under a carefully tailored agreement.
According to this same logic, the government should demand a full accounting of what Bush Administration officials did and it should institute new methods for monitoring and preventing abuses in the future. It should find ways to hold individuals who broke the law accountable without jeopardizing our existing national security. What the government should not do is what Attorney General Ashcroft argues against in the financial context-- to sweep illegal actions under the rug or to go easy on the individuals who broke the law because they work for the federal government.
Nevertheless, Attorney General Ashcroft's reasoning, applied to torture and warrantless surveillance, takes us in unexpected directions. Among other things, it would be useful to know what Attorney General Ashcroft himself did while he served in the Bush Administration. We know that he opposed continuation of one of the warrantless surveillance programs (although perhaps not others that went forward without protest). We also know that he was present at meetings of White House principals in which so-called enhanced interrogation techniques were discussed and approved. According to these reports, he was troubled by discussions of these techniques, but did not oppose them, instead "argu[ing] that senior White House advisers should not be involved in the grim details of interrogations."
One thing is for certain: Attorney General Ashcroft is right to remind us that the mere fact that government controls certain entities does not mean that the persons who work for them are above the law. This is especially true when the persons who broke the law are themselves public servants sworn to uphold the Constitution and laws of our country.