Normative Ethics: Should Obama Seek an Investigation of Possible Crimes by the Bush Administration

Since Obama was chosen as President in early November, there has been a tremendous amount of discussion regarding whether he should pursue an investigation into possible crimes committed by the Bush Administration. The list of possible crimes is almost non-exhaustive, and depends upon the political position of the person listing those crimes. However, the most repeatedly suggested crimes include war crimes, crimes against the environment, violations of the Fourth Amendment, violations of the Eighth Amendment, violations of the Fourteenth Amendment, violations of the First Amendment, and violations of the Second Amendment. However, Obama has not indicated a desire to investigate Bush for those crimes, but has instead suggested that the best course for the country is to look forward rather than looking backward.

Obama’s political standpoint seems to suggest that he believes that prosecuting Bush would increase partisanship, which would go against his campaign promises to try to reduce partisan conflict. There may also be legal barriers to investigating crimes by the Bush Administration. Unlike the Watergate scandal, in which the Nixon Administration directly ordered people to engage in illegal activity against American citizens without even the trappings of legalizing such behavior, the Bush Administration managed to obtain some type of formal approval for many of their illegal actions. Because Bush engaged in those behaviors in his official capacity, it is questionable whether, in the United States, Bush could be subject to criminal prosecution for those actions, or whether the only appropriate legal remedy would have been to impeach Bush during his presidency. However, while a normative ethical analysis of an issue can consider legal or political considerations, they are not dispositive of the conclusion. Therefore, to determine whether ethics require that Obama initiate an investigation against Bush, one must consider four ethical principles: utilitarianism, rights, justice-fairness, and virtue ethics.

Obama cannot take a virtue ethics approach when considering whether or not he should initiate an investigation against Bush. The reality is that many of Bush’s actions that could be considered criminal were undeniably motivated by virtuous concerns as well as vice terms. For example, Bush ordered the wiretapping of phone lines without obtaining a warrant, an action that is clearly illegal in light of Supreme Court interpretation of the Fourth Amendment. Many Americans would consider his doing so to be a betrayal of American values, and label the action a vice. However, other Americans would cite Bush’s concern about the safety of Americans, and label the action a virtue, suggesting that Bush was willing to risk the scorn of all Americans in order to protect America. Likewise, the torture issue, while seemingly clear cut, becomes complex when one considers it from a virtue ethics point-of-view. Is it virtuous not to order torture if failing to do so is likely to result in the mass murder of thousands of people? The problem with virtue ethics is that they depend so much on motives. Was Bush motivated by benevolence, or was he motivated by malice and greed? When one views the consequences of his actions, it seems clear that Bush was not a virtuous man. However, the problem is that virtue ethics means that one does not consider the consequences, but rather the motivation. Many Americans continue to believe that Bush had appropriate motivations, and, as President, Obama is obligated to represent their interests, as well as the interests of people who voted him into office. Therefore, a virtue ethics approach does not provide an answer to the question.

A rights approach focuses on the rights of the impacted parties, and whether Bush has violated people’s rights. Focusing on ethical rights requires a defining framework.

Obama can choose from two possible frameworks. He could focus on legal rights as defined in the U.S. Constitution, or he could focus on human rights, using the United Nation’s “Universal Declaration of Human Rights” as a frame-of-reference. Article 5 of that Declaration specifically states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” (United Nations). The Bush Administration has acknowledged engaging in “enhanced interrogations” and President Bush acknowledged that he was aware of the specific details of those interrogations. (Greenburg, Rosenberg, and de Vogue). Those actions included slapping, pushing, depriving subjects of sleep, and engaging in simulated drowning. (Greenburg, Rosenberg, and de Vogue). All of those actions could be described as degrading, even if they may not rise to the level of torture. However, the problem with relying upon international law is that it does not give Obama a venue for pursuing those violations against Bush. The United States’ legal system requires that a defendant be charged with a pre-defined crime in the applicable jurisdiction. Therefore, even if Obama were ethically required to try Bush for human rights violations, he would not be able to do so without enabling legislation. Therefore, one must look at whether Obama could investigate Bush for the violation of the legally granted rights American’s have. However, while Obama might have a moral obligation to do so, he is hampered by the legal issues, and, given that Bush was acting in his official capacity when he took those actions and that the President has historically been given immunity for official actions, a rights’ perspective simply does not support him instituting an investigation into Bush’s allegedly criminal activities. On the other hand, a rights’ perspective does support the notion that Bush’s activities, even those taken in his official capacity, should be investigated for their alleged criminality. While Obama would not be the appropriate person to do so, the fact that Bush is alleged to have engaged in substantial human rights’ violations supports a trial in the Hague, and Obama would be engaging in immoral activity, from a rights’ perspective, if he hampered such a trial.

Justice is a central facet in Western philosophy, and, while it seems synonymous with legal considerations, it is not. Justice implies that every person will get what they deserve, both the good and the bad. From a justice-ethics perspective, a criminal investigation of President Bush might be necessary, because, it would help identify the people who were harmed by his alleged criminal activity, so that those victims could be made whole. However, the issue is not as simple as it sounds. For example, who knows how many people were the victims of illegal wiretapping, and never experienced any ill effects from that behavior. The majority of those people are, in fact, probably ignorant that they were ever the subject of illegal wiretapping. What type of compensation would make those parties whole, since they did not suffer a measurable harm? On the other hand, some victims of illegal wiretapping undoubtedly suffered serious consequences from that behavior. Although the American public does not know if this occurred, illegal wiretapping may have helped uncover another terrorist plot like 9-11. Would making the victims of that type of illegal wiretapping whole mean throwing out any evidence against them and releasing them so that they could carry out those plots? These are complicated issues, with no simple answers. Part of the problem is that justice means different things to different people. Another part of the problem is that, while the American criminal justice system emphasizes the punishment of offenders as a central part of bringing justice to people, the reality is that victims are not made whole by a punishment. Whatever harm has been done to a person is not erased when their offender is punished. Therefore, if Obama is driven by a justice perspective, his energy would be better sent establishing a way for victims of the Bush Administration to be compensated for their damages. This approach has historical precedent. For example, when Japanese-Americans were illegally detained in internment camps in World War II, the official response from the U.S. government was to offer victims financial reparation. (the Children of the Camps Project).

The final ethical perspective to consider is utilitarianism. A utilitarianist perspective requires that Obama consider the full impact of a criminal investigation prior to launching one. On the positive side, an investigation could uncover the extent of the Bush Administration’s criminal activity and take steps to rectify it, which would have a positive impact on those directly impacted by the criminality. Such an investigation might also increase confidence in the U.S. government, both at home and abroad, which would be an incredibly positive impact. However, one must consider Gerald Ford’s decision to pardon Nixon, when considering whether Obama should launch a criminal investigation into Bush. Although Ford knew it would be an unpopular decision, he decided to pardon Nixon because he believed that doing so would help heal the nation’s wounds. (ABCNews). At the time, the American people disagreed and Ford’s approval rating plummeted. However, viewing the decision years later, public opinion of Ford changed, and by the 1980s people began to think he may have done the right thing by pardoning Nixon. (Roberts).

In retrospect, it does seem that Ford may have made the right decision to pardon Nixon, and he was involved in overtly criminal behavior that was not related to his official position. Prosecuting a former President for illegal activity in his role as President would certainly increase partisan bickering; making it less likely that Obama could effectuate meaningful change in his administration. Doing that might actually cause people greater harm. For example, the economy is having a direct impact on Americans right now, diverting funds into an expensive investigation that might not even result in a realistic possibility of prosecution for Bush or other high-level officials, would be a waste of taxpayer money. Obama must consider all of those issues when making the decision whether or not to investigate Bush. The most reasonable conclusion is for him not to instigate a criminal investigation against Bush, but to correct the illegal behavior, compensate victims, and move forward.

Works Cited

ABCNews. “Sawyer Interviews Ford: Pardoning Nixon was ‘Absolutely Essential.'” Good

Morning America. 2006. ABCNews Internet Ventures. http://www.abcnews.go.com/GMA/story?id=2753606.

The Children of the Camps Project. “Internment History.” Children of the Camps. 1999.

Satsuki Ina. 25 Jan. 2009 http://www.pbs.org/childofcamp/history/index.html.

Greenburg, Jan Crawford, Howard L. Rosenberg, and Ariane de Vogue. “Bush Aware

Advisers’ Interrogation Talks.” Law and Justice. 2008. ABCNews Internet Ventures. 25 Jan. 2009 http://abcnews.go.com/TheLaw/LawPolitics/Story?id=4635175&page=1.

Roberts, Joel. “Polls: Ford’s Image Improved Over Time.” CBS News Polls. 2006. CBS

Interactive Inc. 25 Jan. http://www.cbsnews.com/stories/2006/12/27/opinion/polls/main2301584.shtml.

United Nations. “Universal Declaration of Human Rights.” United Nations. 2008. United

Nations. 25 Jan. 2009 http://www.un.org/Overview/rights.html.