Tuesday, September 16, 2008

Obama & Negotiating with Iran   [Andy McCarthy]

Over at Bench Memos, our friend Matt Franck takes up Amy's question of yesterday about whether there is anything to be done from a legal standpoint on the allegation that Sen. Obama conducted negotiations with the Iraqi government — negotiations said to have contravened both U.S. policy and the interests of our troops in harm's way. Matt has invited me to jump in, so let me give (or, rather, repeat) my two cents.

Preliminarily, I'd note that we don't know for certain that Obama did what Amir Taheri says he did.  Taheri is a highly respected journalist, but he has not identified his sources.*  Speaking not only as a former prosecutor but as a concerned American, I'd say that while Taheri is certainly within journalistic practice in maintaining source confidentiality, this is an awfully serious charge — too serious in my mind to accept as fact without more verification, though plenty serious enough to warrant asking lots of questions (especially given Taheri's reputation and Obama's past gamesmanship with the Canadians on NAFTA).  If Obama did what he's been accused of, it was an outrageous bit of treachery and in my mind shows he is unfit to be president.  (Of course, you might point out that I'd already made up my mind about that, but I would counter that this episode, if it happened, was singularly egregious.)

That said, I'd make two points.  First, I don't like the idea of Logan Act prosecutions.  I addressed this back in 2007 when Speaker Pelosi tried to conduct foreign policy in the Middle East, and I haven't changed my mind.  Like the Pelosi gambit, this Obama misstep would be a golden political opportunity for the McCain campaign and the GOP.  It ought to be handled just that way — argue how despicable and hypocritical the conduct is, but refrain from calls for prosecution.

Second, at this point we also have to be concerned about the overlay of this whole issue of criminalizing politics — which is banana-republic stuff and which Obama and Biden have threatened to do to their political opponents if they get their hands on the Justice Department.  The editors addressed this in an editorial last week, and I think, for the reasons argued there, that the criminalization of our policy debates is to be avoided.  That doesn't mean Obama would not have violated the law if he did this, or that such a violation would not merit our condemnation.  But letting prosecutors decide our politics is a prescription for a very bad brand of politics.

*UPDATE:  I was going from memory — always a bad idea for me — and I should not have said Amir Taheri did not identify his sources.  He did in fact extensively quote a named official, Iraqi Foreign Minister Hoshyar Zebari.  My apologies to the eminent Mr. Taheri.

09/16 09:25 AMShare