Charles Fried says that the law is not the law when the crimes are "political crimes" committed by a highly-placed Republican:
The Washington Monthly: But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf. And the same is even truer of the lower-level officers who followed their orders....
If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people -- albeit with an insufficient sense of moral restraint -- against a terrifying threat by ruthless attackers with no sense of moral restraint at all...
Even though Bush, Cheney, et al. did commit what Fried characterizes as crimes, there should be no trials, no findings of fact, and no punishments: "[when] a sane and moderate society... changes leaders and regimes, those left behind should be abandoned to the judgment of history..."
My first thought is: Hmmm. I don't remember Charles Fried out there defending Clinton when the Republicans sought to impeach him for lying to the grand jury. I wonder how he distinguishes the cases in which the high officials are worth defending from those in which they are not.
I can see the difference between Hitler and Dick Cheney. I can also see the difference between Hitler and a shoplifter. That does not mean that I think that the shoplifter should not be punished for his crime.
More to the point, it is possible to commit crimes for comprehensible purposes. Women sometimes kill husbands who beat them, seeing no other way out. People steal to buy their children food or medicine. The fact that in so doing they show an "insufficient sense of moral restraint" is not relevant to the question whether they committed murder or theft.
If Bush and Cheney's motives are in fact an excuse under criminal statutes, then they should get off (and, I would add, the statutes should be changed.) If not, I do not see why invoking their motives is relevant here. This is especially true since I would think that any government official who decided to violate the laws against torture would do so not to line her own pockets -- torture is not normally lucrative -- but because she thought there was a good reason to do so. If we want to make torture by government officials legal, we should just go ahead and change the law. We should not pretend that it is illegal while excusing any torture performed for motives that any government officials who licenses torture will probably share...
I agree with Hilzoy.
If Bush and Cheney and Rumsfeld and Yoo and Addington and the other prime movers want to plead necessity in front of a jury, let them plead necessity--and let the jury find whether their political crimes were in fact necessary. That's what juries do: find out what happened in fact. To say that any rogue vice president's judgment of necessity is unreviewable--well, even the Old Romans required the passage of the senatus consultum de re publica defendenda before the consuls' judgment of necessity trumped the law.