Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
President-Elect Barack Obama has sent a pretty clear signal that Bush administration officials are in the clear, saying on ABC's Meet the Press;
I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards.Unfortunately, Obama doesn't get it. If prosecuting people for their crimes was "looking backward," there'd be no need to do it. Why did we prosecute poor Slobodan Miloscevic? He was out of power after all, so why didn't we just "look forward?"
Looking forward, I see the prospect of future presidents thinking they can commit any crimes they want without fearing retribution. That's a pretty good argument for prosecuting high-level Bush officials (I'm looking at you, Don R.), if not Bush himself.
It's likely that Obama recognizes that a Republican backlash could jeopardize his domestic policy program. It probably would, but what, really, is the higher priority for America: 10% renewable energy by the end of his term, or constraining presidents from committing war crimes?
Harvard Law prof Charles Fried makes a stunningly inapt (and inept) defense of the no investigation policy.
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...So Fried believes a thief who murders his victim is worse than people who abuse the public trust, shred the Constitution, imprison innocent people without trial, and torture and kill other innocent people? That's a strange position for a guy who normally takes a deontological position, arguing that some actions are wrong in themselves, regardless of their purposes or consequences.Their repudiation this Nov. 4 and the public, historical memory of them is the aptest response to what they did.
And his argument that our "historical memory of them" is sufficient response is pathetically naive. Will our historical memory serve as a sufficient threat to prevent future presidential crimes? Call me cynical, but I'll lay odds against it.
Obama inadvertantly signals that it won't, saying; I do want them looking over their shoulder. Unless we're really just sick and tired of these things called "popular sovereignty" and "the rule of law" and just want to take the leash off those who govern us.
Today on NPR, Fried also offered the argument that a prosecution would open the door to frivolous persecutions of future Democratic presidents by angry and vengeful Republicans. Doubtless it would, but that's just why Obama should pursue a very carefully targeted investigation that pursues only the most serious crimes. In contrast, any Republican investigation of, say, minor campaign finance violations, would look petty and spiteful. For a guy who argues political memory is the solution, he doesn't seem to have much faith in the power of political disapproval to discipline politicians.
The growth of presidential power throughout the last century is frightening, and has radically transformed our political system away from the truly republican one envisioned by the founders to something that is increasingly close to a presidential system absent any real checks and balances. We tend to overlook this as long as one of our own is in power, but power is power and it tends to corrupt regardless of the party label of the one who wields it. Obama may have run on a platform of "change," but day by day that slogan is ringing ever more hollow.
[As an aside, I find it rather silly that the media always brings on law professors, like Fried, to talk about topics like this, which are inherently more political than legal. In my experience, law profs tend to be strong on, surprise surprise, law, but much weaker on having a solid understanding of politics in general. The two are not--and are absolutely not supposed to be--synonymous, but you wouldn't know that from watching the American media. Consequently, we tend not to get good analysis about what either decision would really mean for the future of the American political system writ large.]
Comments
Did anyone ever really expect Obama to prosecute Bush?
Posted by: Tyler DiPietro | January 12, 2009 3:54 PM
I actually had fairly high hopes that he would. Disappointing isn't descriptive enough.
Posted by: Sadie Morrison | January 12, 2009 4:02 PM
My apologies for piling onto the numerous first-day posts. I actually intended this to post Tuesday morning, but I'm not quite adept with the SciBlogs software.
And in the spirit of introducing myself...ah, hell, I comment on here so often you all know me by now. And if familiarity has already bred contempt, classes have just started and I'm rehearsing every night for a community theater performance of "Of Mice and Men," so I probably won't be able to post too many entries before Ed returns and cuts of my mic.
Posted by: James Hanley | January 12, 2009 4:05 PM
I think there is nothing the Republicans would like more than the national distraction of such an attempt at investigation and prosecution. I have no doubt that there is a lot of dirt and crime to be uncovered, but investigating and prosecuting it would rob us of resources and mental effort that might better be spent on fixing the consequences than laying the blame.
Posted by: Paul Lamb | January 12, 2009 4:10 PM
If the Bush administration minions are prosecuted with a distinct political bias, the Republican retribution at a later date could be expected. To isolate, although not insure, the prosecution against charges of political bias, Congress should stay out of it and let a professional prosecutor investigate and bring charges where appropriate. If that means getting the soldiers to sing on their bosses—a time honored prosecutorial method—then so be it. We don't need to send more Lindsey Englishs to prison while the Rumsfelds go scot free. Let the task be undertaken by professionals. Congress should get involved only after investigation and conviction to determine if tighter and clearer laws are needed to guard against similar abuses in the future.
Posted by: Keanus | January 12, 2009 4:15 PM
I made much the same point using the Japanese waterboarders as comparison in the last monthly piece I did for the local newspaper here in St. George:
http://www.thespectrum.com/article/20081230/OPINION/812300308
Posted by: Mark Boggs | January 12, 2009 4:17 PM
I believe that letting Cheney/Bush/Rove/Rumsfeld/Yoo walk away is a crime. Who do I prosecute for THAT?
Posted by: Mike | January 12, 2009 4:19 PM
I was listening to Fried on Talk of the Nation a bit this afternoon and was unimpressed with his simplistic argument. If we prosecute, future presidents will be afraid of prosecution? Well, yeah, you should be afraid of prosecution if you are committing a crime. To imply that this idea was inappropriately legalistic was just ridiculous.
Posted by: nicole | January 12, 2009 4:39 PM
Taking this with some comments Biden has made, I think there's still hope that some sort of investigation will take place, via the Justice Department rather than through the office of the President.
I'm not saying it's a given, and I'm very frustrated at the signals like those pointed out above, but I'm not out of hope on this score yet.
My best guess is there's going to be some sort of 9/11 Truth Commission-style thing, but that Obama won't want to prosecute whoever comes out of that looking bad. In other words, make it clear that the Bush Cheny style of governmenting was wrong, but not actually put them in jail.
Which I think is too bad, for a lot of reasons. Either something's a crime or it isn't, either the President is above the law or he's not, and either we punish crimes for the wealthy/powerful as well as the poor/powerless or we don't. Those questions matter.
Posted by: Jeff Hebert | January 12, 2009 5:01 PM
There's no need to prosecute them. Obama can follow precedence whereby he has the suspects rounded up and sent for an extended Caribbean vacation where they can enjoy some relaxing water sports.
That way he can have his successors deal with the problem.
I hear tell the water-boarding at Guantanamo Bay is particularly invigorating and to be recommended.
Posted by: Wallace Turner | January 12, 2009 5:14 PM
At least have him turned over to an international body for trial!
Posted by: Daniel Kim | January 12, 2009 5:21 PM
They won't be prosecuted because leading Democrats would be implicated as well. So it's good for everyone if we ignore the laws when politicians violate them. This is how Democrats and Republicans operate. It's how they'll always operate, until people stop voting for them.
Posted by: Les | January 12, 2009 5:35 PM
What moral right does the US have to prosecute anyone at all from here on for any war crimes? None.
Lets close the Hague, and lets roam the war criminals free hereafter.
Obama keeps disappointing. Nothing new, actually.
What a piss off.
Posted by: kraut | January 12, 2009 5:38 PM
Oh, colour me surprised!
Some other predictions for things Obama won't do:
1. Actually end the use of torture and mistreatment in US detention.
2. Reverse the FISA wiretap thing.
3. Do away with the Military Commissions Act.
I'd love to be proved wrong, of course...
There's a convention amongst the ruling classes in pretty much any stable political system: you don't give away power if you can help it.
Posted by: Dunc | January 12, 2009 5:44 PM
It's best to consider the American polity post-republican or even imperial at this point, the law only applies to those lacking the power or influence to subvert it.
An international body could intervene at this point, I guess, and such a thing would provide some much needed humiliation for Americans. I wouldn't count on it though, the rest of the world seems to be more or less inclined to appease us.
Posted by: Tyler DiPietro | January 12, 2009 5:59 PM
I think it's best to consider the American polity post-republican or even imperial at this point. It's obvious that American political have little or no interest in upholding the rule of law.
And international body could intervene, I guess. But I wouldn't count on it. The rest of the world seems more or less inclined toward appeasing us.
Posted by: Tyler DiPietro | January 12, 2009 6:01 PM
Oh, so now my comment goes though. After I pretty rewrote it. This new blog software on SB rules.
Posted by: Tyler DiPietro | January 12, 2009 6:04 PM
Mark Boggs,
Nice column. If only I read the St. George Spectum regularly I would have quoted you.;)
Posted by: James Hanley | January 12, 2009 6:20 PM
I'm disappointed, but not entirely surprised. Still, I'll wait and see what they say and do after Bush no longer has the power to issue pardons before I make a final judgement.
Posted by: Azkyroth | January 12, 2009 6:25 PM
Surely prosecuting Bush etc. goes against what Obama stood for, which was unifying the US to deal with the issues ahead. Prosecuting Bush would be a massive distraction from the pressing issues of the moment while alienating almost half of America and dividing the country.
Not that I completely disagree with the notion of prosecuting him and holding presidents to account, but I think like with Milosevic it's best to wait rather than immediately trying to take him down.
Posted by: Jeremy | January 12, 2009 6:25 PM
Meant to quote the relevant text from the piece I linked above. As follows:
-----------
The apologists continue to downplay the use of torture either by redefining it or arguing it was required to guarantee the safety of the United States. They give the ticking time bomb scenario, which makes the assumption that a theoretical terrorist attack is always imminent and that every theoretical prisoner we capture might have intimate knowledge of the event. And torture is justified in this hypothetical to keep us safe, never mind the unreliability of the techniques to gather reliable information.
If you juxtapose this logic with the supposition that the Japanese soldiers who were sentenced to death for waterboarding the captured Doolittle raiders in World War II tortured the flyers for the same reasons we gave for torturing our al-Qaeda suspects, you're left rewriting history to exonerate not just the Japanese torturers, but the Nazi torturers, Vietnamese torturers, etc.
Every country or military that tortures will argue that they have very good reasons for doing so, among them being the imminent threat to their national security. Why should we consider them barbaric and inhumane for taking the same steps we have?
Posted by: Mark Boggs | January 12, 2009 6:27 PM
Thank you James. I'm trying to figure out how to save your praise to be used on a resume later.
One bit of advice though, if trying to actually glean information for use in constructing a worldview, I'd skip most of the Spectrum newspaper, except for my articles which appear every fourth Tuesday ;)
I kid about the Spectrum. They've actually got great info about the newly returned missionaries and the newly called as well as the Eagle Scout recipients.
Posted by: Mark Boggs | January 12, 2009 6:34 PM
I'm afraid those things only look petty and spiteful to people who are in the party being attacked. My Republican relatives think that my "When Clinton lied, no one died." poster somehow misses the point.
Posted by: BaldApe | January 12, 2009 7:42 PM
James: You always make me think, whether I agree with you or not. In this case, I am still not sure on which side I will come down on, but I have to bring up something most commenters here and elsewhere have ignored -- with Paul Lamb a rare exception.
Too often people who speak about prosecuting Bush, or who previously demanded impeachment, seem to be imagining a 'Star Chamber' proceeding where Bush and/or Cheney etc. is brought in, declared guilty, sentence is passed, and everybody retires for lunch.
But if 'honoring the rule of law' requires putting Bush on trial, it also requires that he be allowed to put on the best defense he can, with the best lawyers he can afford and convince to work for him.
Think of the smokescreens his defense team could produce. "It's all political payback for the Clinton impeachment." "Democrats are just as guilty for acquiescing." "If a President has to govern with his eye on potential prosecution..." (Is it even legal to prosecute a President for official acts?)
At the very least it would be a year-long (at least)political circus, and don't forget the Howard Hunt technique of "Go ahead and prosecute, but to do so, you'll have to declassify any document I can argue might be relevant to my defense." The republicans would be spinning it so hard the law of conservation of angular momentum might require the Moon to stop for a few months to balance things off.
Another day and time and I have little doubt it would be worth doing -- and I'm not convinced it isn't now. But there are a half dozen major crises that need to be taken care of, and since the prosecution of Bush is one thing that might unify the splintered Republican party, would it hinder Obama's ability to deal with them?
Unlike impeachment, it has a chance of suceeding, it is possible to imagine a jury convicting. (Assuming Lieberman was a lost cause, but all the other Democrats voted to convict, you still would have needed 17 Republican Senators to vote to convict -- and you couldn't have gotten them if someone released a picture of Bush sharing a toilet stall with Larry Craig AND "My Pet Goat."
But it isn't a certainty. Let me ask those who argue that it would be a dangerous precedent if Bush were not prosecuted one question.
"What kind of precedent would it be if Bush were acquited?
Posted by: Prup (aka Jim Benton) | January 12, 2009 8:00 PM
Actually, the real reason that President Obama will not prosecute Bush administration officials is very simple. Recall the character played by Werner Klemperer in the movie, "Judgment at Nuremberg". After he is convicted, he exclaims, "today you try us, maybe tomorrow the Russians try you." Thus, President Obama has to consider the possibility that a Rethuglican administration in 2012 or 2016 would retaliate by putting Obama administration officials on trial. After all, there are many who speculate that the impeachment of President Clinton was, in reality, payback for the impeachment of Richard Nixon.
Posted by: SLC | January 12, 2009 8:08 PM
Holy law of uninteded consequences Prup!!
I'd never thought of that possibility simply because they've basically admitted to the whole thing and I'd assumed that a trial would simply uncover most of the bodies and the trail of blood from one act to another and who was an accomplice here and there, etc. I'd never entertained the truly disturbing thought that a jury would acquit any of these guys.
If it happened, would you have an LA-style riot, post Rodney King verdict on a global scale?
Posted by: Mark Boggs | January 12, 2009 8:11 PM
First off, Dr. Fried might have noticed that the principles in these crimes were not repudiated at the ballot box; Bush and Cheney won reelection, served the constitutionally maximum tenure, and retire with full benefits. Even a law professor should have that much command of politics.
Secondly, Cheney & Rumsfeld watched Nixon's fall from up close and this is what they learned. Not much of a deterrent, was it?
Posted by: Scott Hanley | January 12, 2009 8:12 PM
He wasn't on Meet the Press. Further, ABC doesn't have Meet the Press.
He was on ABC's This Week with George Stephanopoulos.
Posted by: Austin | January 12, 2009 8:28 PM
You're not playing Lennie, are you? Because that would be so awesome.
Posted by: MisterDomino | January 12, 2009 8:43 PM
Consider the following scenario:
On January 18, Bush officially pardons everybody associated with the torture, including Cheney and Yoo, and those who participated.
On January 19, Bush officially resigns as president, handing over the reins to Cheney. Cheney, as his one official act as president, pardons Bush for the torture.
It seems to me that, if Obama says he will be prosecuting for war crimes, it only increases the possibility of the above scenario.
I keep hoping that Obama is being low-key and coy just to prevent such a scenario, but that once he is inaugurated, he does plan to pursue it.
Posted by: Ahcuah | January 12, 2009 8:51 PM
And next thing you know it, a Democrat would be prosecuted for lying about a blowjob. Thankfully, that would only happen if Obama went after Bush/Cheney, forcing Republicans to become angry and vengeful. ...
The next day on CBS's Press the Meat, Fried surmised that Obama should give Alberto Gonzales his lunch money -- you know, just as a strategic, preemptive measure. ...
Fried later cogitated on The View that Obama might want to just hand over the presidency to Sarah Palin, because if you're looking forward, why not look WAY forward ...
Posted by: itchy | January 12, 2009 10:22 PM
There's always the Hague. Remember, no statue of limitations applies. - DJ
"Hang them high over the town! Who weeps for these, weeps for corruption!"
Posted by: DingoJack | January 12, 2009 10:22 PM
Having lived in interesting neighborhoods for quite some time, I can attest to the fact that the first thing you want to do is clean up the mess and repair/replace your stuff. The legal process comes after. Usually long after.
Posted by: Leonard | January 12, 2009 11:09 PM
One reason I can think not to prosecute Bush is in case it makes future presidents less likely to relinquish power willingly, but that's a fairly narrow point and only covers the president, not his staff. The best way to deal with this would have been impeachment, but that ship has sailed, thanks to partisan politics and general spinelessness
If Obama doesn't want to prosecute, there is another option: a passive-aggressive pardon. Obama could pardon Bush for authorising torture and various other abuses of the Constitution, all rendered in loving detail. Such a pardon would 1) make it clear no prosecutions would take place and 2) make it clear that the Bush administration's actions should be considered illegal.
This would be less forceful than a prosecution, but it would still have an effect.
Posted by: James K | January 12, 2009 11:26 PM
No, Mr. Domino, I'm not playing Lennie. Just the minor character, Whit. I get to play cards and talk about whorehouses--and my 78 year old conservative Christian mom is coming to the show.
James K, what a delicious idea! There is no recourse against a pardon. Because it doesn't apply any formal action against Bush, there is no action for him to take in response (shades of Marbury v. Madison!). And yet it clearly sends the message that he committed crimes.
Prup, An acquittal is far preferable to ignoring the allegations of a crime, because an acquittal doesn't make a mockery of the law. And, yes, it would indeed be a messy process. Of course if we follow Shakespeare's advice...
Posted by: James Hanley | January 13, 2009 12:53 AM
LOL@ the altruistic fools.
Yes, lets have a court goat rodeo right now. It'd be whitewater * ten bajillion and a total waste of time. Nothing would get done and governance would grind to a halt as you losers whacked off to c-span and hit refresh every ten seconds at Kos.
If you're gonna throw the criminal towel at W and his goons you will open it up to pretty much any state leader, yes, even those from the glorious EU, bastion of truth and justice. Who let the CIA operate in their airspace? Who colluded with the secret prisons?
Fucking hypocrites. The only think the separates W and his cronies from those at the top in the EU is that Bush is a retard puppet that got cought.
Posted by: Ian | January 13, 2009 1:03 AM
Ian, so then you think members of government should be able to break the law with impunity because, what, "everybody does it?" Or is it because "we can't have trials and run the government at the same time?" They're both pretty silly.
Whichever it is, I'm sure the criminals in government appreciate your support.
Posted by: Les | January 13, 2009 2:35 AM
How did the EU come into this?
Posted by: Azkyroth | January 13, 2009 2:42 AM
As a citizen of the European Union, I would certainly welcome that. You see, I don't exactly agree that it's a "bastion of truth and justice".
Nice strawman. Can we go back to the original topic now?
Posted by: Ernst Hot | January 13, 2009 4:47 AM
So, if you don't bend over and take it up the ass because "everybody else is doing it", you are a loser, huh, Ian? Interesting.
You wouldn't happen to be one of the actresses from the Slap Happy movie series, would you?
Posted by: Valhar2000 | January 13, 2009 5:21 AM
It would end up like the war, everyone would end up involved, it would be costly and so very, very long. I agree with Obama, it's not something you want to be doing for your first year in office. He has enough to do.
Is it a shame that he won't? yes...yes it is, but that doesn't make it a good political move.
Posted by: Richard Eis | January 13, 2009 6:43 AM
"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."
What??? That makes no sense. So what if they're not the same crimes, they are CRIMES. Crimes are supposed to be punished and if they are deliberately left unpunished then you have declared the culprit above the law.
I also love the argument saying that it's okay to cause the deaths of thousands upon thousands of civilians, just so long as you're not stealing money. He seems to miss the fact that the administration WAS lining their pockets and those of their cronies by carving up Iraq's infrastructure and selling it on at bargain-basement prices, as well as dishing out the juicy contracts to their buddies without going to tender.
Grr, angry now. I know there was never any chance that Osama would have the balls to prosecute but I thought he might at least make them sweat for a while. I keep forgetting just how little substantial difference there is between Democrats and Republicans...
Posted by: Cannonball Jones | January 13, 2009 6:50 AM
I, too, wonder if Obama just thinks there are more urgent things to do (it's the economy, stupid!) and perhaps wants to start the prosecution after he's reelected, when it can't harm him politically anymore.
Well, yes. :-|
O RLY?
Posted by: David Marjanović | January 13, 2009 7:18 AM
James Hanley,
Not to disagree, especially after you gave me such a wonderful review, but wouldn't an acquittal simply make everything that has happened acceptable by virtue of the acquittal? And wouldn't it give fodder to the 28%ers who insist that what went on wasn't illegal. Now they would have the ruling of a jury to confirm their delusion.
I'm still inclined to agree with you because I think that if we managed to expose everything that has happened and the length these guys have gone to try to legalize what is clearly illegal, and that they actually ordered what is illegal to be done, there isn't a chance in hell they'd be acquitted, but I've been amazed at the capacity of the American people before and worry that this would be another opportunity to be amazed...and disappointed.
Posted by: Mark Boggs | January 13, 2009 8:36 AM
I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards.
I think I'll go rob a bank, and tell them Obama said it was ok.
Posted by: JED | January 13, 2009 8:59 AM
Fortunately, it looks like Obama will REALLY not torture. But by refusing to entertain investigating and prosecuting those who engaged in torture, illegal surveillance, and other crimes authorized by Bush Administration attorneys, Obama is setting the nation up for their resumption as soon as a Republican administration takes office again. After all, where's the downside to breaking U.S. and international law?
It's just too dangerous to put the law at the whims of politicians. The Founders recognized that, and so have the three branches of government--until the last eight years. Now the only thing standing between us and and outlaw government are good intentions. That's not nearly enough.
Posted by: RAM | January 13, 2009 9:03 AM
Posted by: James Hanley | January 13, 2009 9:58 AM
James Hanley,
Understood. Maybe I'm just so certain, partially because they've admitted as much, that these guys are guilty that to all of a sudden have a trial where all this damning evidence is offered and they're still acquitted will make everything they've done seem proper and legal. That is what concerns me. Not to say I think you don't investigate or prosecute based on your fear of what might happen, but that possibility of acquittal strikes me as the absolute whipcream on the horse turd.
Posted by: James Hanley | January 13, 2009 10:11 AM
The point you make about the law and politics not being the same is an important one, particularly for this topic. Politics is the art of the possible, and law, by its nature, should be a clear matter of facts, motive, and culpability (of course, it really isn't; can anyone name the last time a "celebrity" was 1) convicted of a crime and 2) given the same sentence any of us would get for it?). Obama may be a Constitutional scholar, but he his, first and foremost, a politician. And as President, the Union's political administrator, his duty is to the possible, not to perfect justice.
Did Bush break the law? Yes he did; he clearly did, as clearly as Nixon broke the law, as clearly as Grant broke the law. His administration was not only responsible for the most glaring and stereotypical breeches of our most foundational legal documents and values, it was also blindingly corrupt, vindictive, and petty. Given that Cheney, the epitome of Nixon apologists, was his VP, and that through him pride of place was given to people like Addington, a man who's career is built around a declared disdain for legality, this is no surprise. From a legal standpoint they and many, many others deserve to spend a significant portion of the rest of their lives in Leavenworth. But even if Obama pushed such prosecutions right now, they wouldn't, and he would never push such prosecutions because his job isn't to bring blind justice to the land, its to govern.
To begin with, the Republican party isn't dead, just horribly maimed. For 30 years they've been waiving the bloody shirt of Nixon, attempting to excuse his vile espionage and sabotage against political opponents, paid for with tax-payer funds, and using the "witch-hunt" against him as justification for increasingly serious political crimes on their part, Bush's presidency being the culmination of this. For them, party discipline and loyalty are most important because they view the political structure of this country as a battle, and the Dems as amoral enemies. How do you think they would react to such prosecutions? Fox news would explode. Right wing pundits would be yowling bloody murder, red-faced and be-spittled, from every radio and television screen in the Union, for months. They would organize protests and boycotts and "prayer vigils"(right-wing for sit-in) everywhere. All those nimrods who talk about the "welfare state" and "reverse discrimination" would be propounding self-righteously about how this proves their absurd conspiracy theories right. They would rant and rave, huff and puff so powerfully that the past few weeks of anti-union grandstanding we've all been exposed to would look positively self-effacing. In the current atmosphere the trials would be so politicized, that you wouldn't even be able to get a conviction. No judge in the land, even a Justice, would be brave enough to face down that howling tempest of public opinion and issue a conviction.
Then there is the issue of how the elected officials of the Republican party would react. They'd never work with Obama or the Dems on any bill, even routine ones. They'd put forward nuisance bills to de-fund the Justice Department. State legislatures would pass declarations condemning the acts of the Federal government, and all that talk about "states' rights" and "federalism" which seems to dominate Democratic presidencies only to disappear during Republican ones would burst onto the stage with new, and potentially obstructionist, life. To pursue such prosecutions now, to even say you are going to pursue such prosecutions now, would make it impossible to govern which, in the current situation, would be dire. It would mean no stimulus plans of any kind. It would mean no ability to move with the speed or agility necessary on issues in Pakistan and Afghanistan. It would mean a blank check to Russia in regard to its increasingly apparent plans regarding the nations of Eastern Europe. It would mean an unreliable U.S. partner during the most pivotal time in Japan's history since WWII, which in itself would likely mean a Japanese realignment with China akin to that of Australia's during the Bush admin. An inability to govern now would not only have dangerous short-term results, in the long-term it would strengthen the patterns of drift among allies, diplomatic shiftlessness, and growing unimportance which the Union has suffered from under Bush's tenure. The last thing this country needs right now is the Republicans throwing one of their tantrums and refusing to work with their fellow citizens.
As it stands, Obama has his work cut out for him. He is inheriting what is likely the biggest set of difficulties any president has faced since FDR, and he's doing it without the wide legislative margins that Roosevelt possessed. He does not need a series of unwinnable, easily propagandized, politicized trials which would make any attempt at reforming or implementing policy through the legislature an uphill struggle, and breed recalcitrant belligerence towards him in half the population. Does justice call for it? Yes; only a self-blind fool would argue otherwise. But is it possible? No.
Posted by: Julian | January 13, 2009 10:11 AM
James Hanley,
I swear I have not hacked into the brains to impersonate you. And I certainly wouldn't do it while addressing you in the same post. Anyway the "whipcream and horseturds" post is mine.
Mark Boggs
Posted by: Mark Boggs | January 13, 2009 10:19 AM
On the one hand, I'm a bit disappointed at this; at the very least, Obama could have used a different choice of words, something more along the lines of "We need to look forward, but we also need to discuss and understand what was done in the past, so we can learn from it."
On the other hand, a few points:
First, of course Obama won't prosecute the Republicans -- he's about to become President, not Attorney General. He won't have any legal authority to prosecute anyone for anything.
Second, while Obama's response to Republican stupidity has been admirable, the party that nominated him is still at least as invertebrate as your average jellyfish -- those tired hacks are gonna have a tough enough time facing our economic mess, let alone "war crimes" and the like. (And besides, many Democrats were complicit enough in said crimes that any investigation they support would very soon catch them up in it.)
Third, a HUGE number of Americans supported those "war crimes," for whatever reason; and most of them are still in flat-out denial about it. Wide-ranging criminal prosecutions might only cause them to retreat even further from reality, when we need them to face reality and work for the greater good of our country.
Fourth, did Obama actually SAY he would not support criminal prosecutions? All I see from this post is a vague bit about "not looking backward." That's not exactly ruling out any specific action, so there's still room for criminal litigation, Congressional investigation, hearings, "truth-and-reconciliation" actions, and the like.
Fifth, a little historical perspective: of all the politicians and military officers who led the South into the Civil War, how many were prosecuted for criminal offenses? Robert E. Lee could have been shot, but he only lost his mansion and spent the rest of his life under comfortable house-arrest.
Posted by: Raging Bee | January 13, 2009 10:32 AM
Julian,
Whereas I agree with most of your points, although the prognostications you make for global alliances and intentions is beyond my abilities, I would sincerely hope that any investigation and prosecution would not simply be a partisan affair but that those who were in the know on the minority side of the aisle, Hoyer, Rockefeller, Harman, et al, when the briefings came in about these techniques and the warrantless wiretappings would be investigated and, even if charges were never brought, these folks would forever be known and embarassed by their status as enablers and apologists, if not outright lawbreakers.
The quickest way to disarm the FOX crowd would be to make sure that no one was spared regardless of party.
Posted by: Mark Boggs | January 13, 2009 10:33 AM
Wowza! I have no idea how Mark's comment was able to show up as being posted by me. It sure threw me for a loop, though. I was trying to figure out if I had a blackout moment.
I'd just like to say that the level of discussion here has been much more thoughtful and sophisticated than what Charles Fried said. Way to go, Dispatchers.
Posted by: James Hanley | January 13, 2009 12:08 PM
Great minds think alike?
Posted by: Mark Boggs | January 13, 2009 12:40 PM
There's no way of spinning this to make it something positive. The Busheviks will get away with it, just like the Contra crooks in the 80's (some of whom are still working in the government now.) The only small solace is that these slimeballs will have to watch where they travel in the world, because many other countries, unlike ours, still believe in the rule of law.
Posted by: Raymond Minton | January 13, 2009 2:36 PM
I saw this interview. You also did not quote all he said. Gregory did follow up and ask Obama if "not looking back" meant he would not prosecute. Obama replied if there are criminal activities they would be prosecuted. Obama then repeated again "No one is above the law." If you look at the Meet the Press transcripts you will see this.
Posted by: Melissa | January 13, 2009 3:20 PM
Mark Boggs said:
"The apologists ...give the ticking time bomb scenario,... justified in this hypothetical to keep us safe, never mind the unreliability of the techniques to gather reliable information."
They have a point, though, IMO. IF a doomsday scenario can be avoided by torturing the right guy at the right time that sure sounds great to me. And whether unreliable info comes out as well as reliable info - who cares as long as the reliable info can be run down fast enough to save the day. There have been plenty of instances of reliable information being generated by 'interrogation' techniques. (For example - the info that Curveball gave up to Rumsfeld's Military Intelligence unit was instrumental to the prosecution of the Iraq War. Just kidding.)
The problem with the apologist's 'ticking time bomb' scenario is not the scenario - it is that they use it without any semblance of discretion to justify torturing everybody.
"If you juxtapose this logic with the supposition that the Japanese soldiers who were sentenced to death for waterboarding the captured Doolittle raiders in World War II tortured the flyers for the same reasons we gave for torturing our al-Qaeda suspects, you're left rewriting history to exonerate not just the Japanese torturers, but the Nazi torturers, Vietnamese torturers, etc."
I have a difficult time with this argument. The doomsday scenario deals with an unconventional (asymmetrical and terroristic) attack, whilst the Japanese, Nazi's and Vietnamese were involved in a conventional war, without civilian targeting of WMD.
Now, if the Japanese had intel on a sleeper group in Nagasaki with a suitcase A-bomb, and they had a member of the sleeper group, then it would be a different story, I think.
Posted by: Gingerbaker | January 13, 2009 4:25 PM
Prup said:
""What kind of precedent would it be if Bush were acquited?"
What kind of precedent would it set if the Democrats sternly brooked absolutely no bullsh*t, painted all opposing Repubs as being against the rule of law and the American Way, prosecuted any and all obstructions of justice in the harshest terms, and then sent convicted mass-murdering scoundrels to jail where they belong?
Personally, I think it would mean a lasting positive effect for Dems for a lot more than one election cycle. (Who's your Daddy now, Republican Party?)
How often do you get a political opportunity that requires you to do the right thing for all the right reasons?
This could break the back of the current radically regressive Republican party forever. And even if the effort fails, it still shows that the Dems are willing to stand up for what is ethically and morally correct. I don't see much of a downside, compared to doing nothing.
Posted by: Gingerbaker | January 13, 2009 5:00 PM
Gingerbaker,
With all due respect, if the Japanese captured pilots who made a bombing run on Tokyo, who is to say that there wasn't a bigger invading force getting ready to come and that these flyers might have knowledge of it? Thus, the Japanese, using the defense of national security should do anything they can to glean that information, correct?
Who is to say that the North Vietnamese weren't hoping to get McCain to spill the beans about what the US plans were regarding Operation Linebacker? Using our (your) logic, aren't they justified from a national security standpoint?
Why would a conventional war and a terrorist-type, guerilla war be treated any differently when it comes to who gets tortured? I'm not usually one to argue absolutes, but if you allow an exception to this rule of not torturing people you have no rule left.
And this leads into your first point about torturing everybody. The US has assumed that anyone captured in any of their "sweeps" starts guilty and has to work against overwhelming odds to prove otherwise. As one jackoff I've argued with put it, "There in Gitmo for a reason." To which my response is, "Good, let's try them and get on with it. Holding them indefinitely without trial looks like someone's acted irrationally and now wants to keep that from being known while still looking like they've done their job."
Finally, let us suppose the US has some "chatter" about an imminent threat and they pick up a guy and they end up torturing him because they think he's got info. Turns out he has nothing to do with it. Help me out here -- Where is his recourse and how does he reattain his normalcy?
Posted by: Mark Boggs | January 13, 2009 6:03 PM
Should read: "They're in Gitmo for a reason."
Posted by: Mark Boggs | January 13, 2009 6:06 PM
While I can't parse the breakdown, I strongly believe there are plenty of moderates, independents, and ex-Republicans (like me), that are not members of the Democratic Party partly because, as a party, they have no hair on their balls when it comes to difficult and possibly unpopular decisions. I see an investigation and prosecution of the Bush Administration, in spite of the inflammatory attacks they'd endure from the right, as an opportunity to win us over to their side, they see it as a threat to us all singing Kum Ba Yah (sp?).
Two examples of why many people like me are not Democrats would be Gore's limp-wristed fight to win the presidency in 2000 the day after the election through the hearings of the Supreme Court (which I believe mainly explains Bush's favorable ratings soaring right after 9/11), and a more recent example is Reid wimping out and seating Burris, even after repeatedly stating he wouldn't as late as a week ago last Sunday on Meet the Press (where he provided himself with a last minute "out" in that interview as well so technically he didn't lie, he just showed proved what an unprincipled wimp he is).
Given the character Reid displayed in the Burris fiasco I see little support out of the Senate's Leadership to support an Obama Justice Dept. investigation or independent "truth commission" either.
Posted by: Michael Heath | January 13, 2009 6:32 PM
Michael Heath:
I'm technically still a member of the party (man that sounds strange to say in a free country that has been taught to despise countries that talk about membership in "the party") and I've got a lush, thick growth of hair on my balls. I was running my fingers through it as I read your post, in fact.
Seriously though, I agree that there, as there is no "I" in "team" there is no "spine" in "Democratic party."
Posted by: Mark Boggs | January 13, 2009 6:49 PM
Actually, I think the original was more likely to be a faithful quoting of the kind of person who thinks that way.
Posted by: Azkyroth | January 13, 2009 8:48 PM
"Whichever it is, I'm sure the criminals in government appreciate your support."
"how did the EU come into this"
All the people calling for Ws head on a platter seem to think the USA and our lame ass government officials are the only ones complicit in this mess. Many of those most vocal hail from other nations, oh so happy to point and laugh at us for electing this loser not once but twice. And many of those nations were complicit in the crimes committed, but of course only the big bad USA is at fault.
It was an international team effort. You want to hang W, get ready to hang a bunch of other folks to boot.
Note I didn't say folks were wrong to want W to be prosecuted, just that many are hypocrites and the rest are unrealistic.
Should Clinton, Albright and Clark be prosecuted for the action in the Balkans? I'm sure there are some folks would would consider bombing the Chinese embassy a "war crime." Oh, it was "bad intel." So?
No. W will got to his ranch and hopefully never be heard from again. The is the best we can hope for.
Posted by: Ian | January 13, 2009 10:28 PM
Like all my good ideas, I got it from Terry Pratchett. It effectively allows you to convict Bush without a trial, just so long as you don't mind him not actually serving any time.
Posted by: James K | January 13, 2009 11:29 PM
How exactly do you propose we try European Union officials for violations of United States law?
Posted by: Azkyroth | January 14, 2009 12:24 AM
Mark Boggs said:
"With all due respect, if the Japanese captured pilots who made a bombing run on Tokyo, who is to say that there wasn't a bigger invading force getting ready to come and that these flyers might have knowledge of it? Thus, the Japanese, using the defense of national security should do anything they can to glean that information, correct?"
No. Not according to the Geneva Conventions. And the reason the G.C apply is that WWII was a conventional war, where millions of men in uniform used conventional military armaments which themselves were easily identifiable and were legitimate targets.
Japan knew that any attacks on Tokyo would come from an easily identifiable outside force using conventional armaments that the Japanese could counter.
The doomsday scenario is to cope with a non national and non uniformed enemy whose sole purpose is to inflict terrible destruction on the civilian population. There is no way to intercept a strike force from such an enemy, because there is no strike force, and no way to identify the enemy because they wear no uniforms and do not use conventional armaments.
Terrorism is NOT conventional war. And reserving doomsday torture for an actual doomsday scenario requires only the same discretion as not using an H-bomb to solve every battlefield confrontation.
Posted by: Gingerbaker | January 14, 2009 10:07 AM
Gingerbaker,
Again, as I understand it, torturing anyone, regardless of whether they are part of a national force or not in a conventional war is a violation of third part of the Geneva Conventions.
From wiki:
The judgement quoted the 1958 ICRC commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, "There is no intermediate status; nobody in enemy hands can be outside the law,"[2]
I'm not sure how you can say a person can be subject to torture because they're not fighting the way you want them to. It seems that we don't torture because of what it says about us and our respect for other humans. If you can loophole one set of people into torture by doing what the Bush admin. did, can't you just about find a loophole for anybody?
Posted by: Mark Boggs | January 14, 2009 10:52 AM
Should read that it doesn't matter whether you are part of a national force or not or whether it is a conventional conflict or not.
Posted by: Mark Boggs | January 14, 2009 10:57 AM
Mark, I am not arguing that torture under a doomsday scenario is allowed by the G.C. - I don't think the G.C allows for torture under any circumstance.
All I am saying is that I disagree with your assertion that the use of torture under a doomsday scenario is a slippery slope leading ineluctably to a more general use of torture.
And I am not endorsing anything the Bush administration did. Rather, I pointed out that every indication shows that they have not used any discretion at all in their use of torture.
Which is why I also argued that I think prosecuting them for war crimes would not only be morally and ethically appropriate, but a politically savvy thing to do.
However, I do hope that IF a doomsday situation were to arise - a very specific and unlikely scenario, BTW - that agents of my government would not hesitate to do whatever was necessary to save millions of lives.
I guess the only question would be - if the doomsday scenario took place, and US agents tortured the right guy, and saved the day, would they be considered war criminals or national heroes? My money is on heroes.
Posted by: Gingerbaker | January 14, 2009 12:16 PM
In all likelihood, they'd be considered massive failures after their fixation on torturing informants and ignoring other ways of getting at the truth resulted in them torturing the wrong guy, who eventually made something up so they'd stop torturing him, and they acted on this false information, thereby ensuring the attack would be completed successfully.
Posted by: Azkyroth | January 14, 2009 2:59 PM
Just by Pres Obama's cop out to moving forward, it's not hard to see he will play dumb all the way.....and Bush and Cheney and cohorts will skip merrily on their way after committing attrocious war crimes as well as Haliburtun?Kellogg crimes. WE should all finally get it through our heads both republicans and democrats are run by the same higher ups...and the only differences are perhaps religious/gay /abortion rights......we are all still sucked in to the corrupt since the 1700 days of politics....the small circle of elite that are the only ones able to run....as he money is always there for the cfr/globalization presidents.....where is Ron Paul when you need him
Posted by: Susan | February 10, 2009 6:58 PM