Legal Commentary

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.

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.

If only we could take his sage advice.

Full post as published by Balkinization on May 05, 2009 (boomark / email).