Justice in the minds of the Beltway Village

I'm a little surprised at how strongly I feel about the need to prosecute the most serious of the crimes committed by the outgoing administration. It's not that I've changed my mind about the basic framework of the issue. It's more that I'm stunned by how it seems that even for many Democrats, it's treated like a pure matter of political tactics.

It's not. The Justice Department has a responsibility to investigate and prosecute in good faith serious crimes by the Cheney-Bush administration on which the statute of limitations has not run. The fact that the current Justice Department is not doing so is a sign of just how irresponsible this whole administration is.

I'm not tormented at this point by the supposed lack of "progressives" among Obama's advisers. Don't get me wrong, I'd love to see Paul Krugman and James Galbraith among his senior economic officials, Andrew Bacevich as a leading military adviser, and Wesley Clark as Defense Secretary. But so far none of the Cabinet picks has distressed me. And we're at one of those moments where "reality has a liberal bias". So even the most straightforwardly pragmatic approaches to the major problems will be very similar to consciously-constructed bold liberal initiatives.

But the notion that prosecuting serious crimes like torture is a purely political option is appalling to me.

A "truth commission" or a Congressional investigation or some bipartisan commission are not adequate approaches to crimes like the torture policy, the deliberate use of fake intelligence to justify the war in Iraq, the outing of Valerie Plame, and the corrupt prosecutions like former Alabama Gov. Don Siegelman's almost certainly was. It will take real prosecutions to lay out what happened accurately in some of these serious cases. Unless we want to wait 50 years for the historians to reconstruct it all and hope some new Dick Cheney doesn't shut down the rule of law permanently before then.

There a bizarre sense of bipartisanship for the adherents of Washington Village wisdom when it comes to government officials committing blatant crimes. When Republicans break the law, goes the thinking, they should never be prosecuted because that would be "politicizing policy differences". Republicans and Democrats seem to comfortable with that approach.

But Democrats, in this Village view, should be charged with every crime they commit and others that weren't committed at all. Ask Don Siegelman about how that latter option works. Or the US Attorneys who were fired for not bringing unjustified "voter fraud" charges against innocent targets.

Charles Homans explains to us this one-sided bipartisan attitude toward serious government lawbreaking in The Mixed Up Files of G.W. Bush TPM Cafe 11/24/08:

... a commission offers a relatively easy out for both Obama and Congress, who have a responsibility to bring some closure to the abuses of the Bush presidency but little real incentive to do so (as you may have noticed, they have a lot of rather pressing issues on their plate). It's also crucially important to frame the investigation as an essentially nonpartisan matter of restoring constitutional protections and the rule of law, which is difficult to do when you have a Democratic Congress or White House investigating their Republican counterparts, even if they do so responsibly. (There also isn't any real reason why this couldn't happen concurrently with the more narrowly focused investigations that various congressional committees and department inspectors general and, in the case of the DOJ, a special prosecutor are still pursuing.) [my emphasis]

So, faced with dealing with the bad deeds of the most criminal and corrupt administration in American history, Obama and the Democratic Congress should be looking for ... "an easy way out"?!?

What, we're going to have another "Baker-Hamilton" commission? That would be James Baker, Bush family fixer and hyper-partisan Republican for the Reps. And former Democratic Congressman Lee Hamilton, a man who apparently would prefer to be fed to the sharks than to demand in public that Republicans take responsibility for criminal acts, for the Dems.

And no amount of "bipartisan" commission jabber is going to stop the Rush Limbaughs of the world from calling any honest prosecutions of that kind the worst witch hunts in the history of the world.

Digby has some additional comments on Homans' ideas at her Hullabaloo blog (Unlocking The Secrets 11/24/08). She a bit more generous to him that I am. But she and dday at Hullabaloo have both been very good at stressing the importance of real legal accountability for the Cheney-Bush administration officials.

Maybe a lot of the Villagers just seriously don't care whether the rule of law survives. Because it's hard to see how it can if Cheney and Bush's people get a free pass on lawbreaking, from the torture policy to the massive corruption with contracting to the phony partisan prosecutions to the vote-suppression actions, and more. Especially on the torture policy.

This is an administration that openly proclaimed that it had the right to break the law at will.

Obama's Justice Department will also have an obligation to investigate and prosecute in good faith serious crimes committed by the Bush administration. If they don't, they would plainly be irresponsible. The fact that it will surely be politically uncomfortable in many ways is no excuse.

Between Presidential pardons, Office of Legal Counsel opinions written to facilitate the commission of crimes, and the thoroughly shameful Congressional indemnification of perpetrators on some issues, some very guilty people may be sheltered from prosecution.

But even the broadest Presidential pardons wouldn't shield perpetrators from prosecution on the torture policy, war crimes, or kidnappings and assassinations that were clearly violations of international law. At the very minimum, if the US declares it can't prosecute known crimes in violation of international law committed by American citizens, that pretty much removes all procedural barriers from other countries to initiate prosecutions themselves, as I understand it.

Rummy already had to sneak out of France quickly on one occasion when someone filed torture-related charges against him while he was in the country. The human rights attorney Scott Horton has said that a couple of (anonymous) senior officials in Europe have told him they are preparing some charges to be filed against officials of this administration as soon as Bush leaves office. We'll see how soon that happens, if it does.

If some high official is arrested and successfully prosecuted over the torture policy in particular by another country, while the Obama administration doesn't attempt to bring charges, that would be a staggering indictment of the American justice system to the rest of the world.

The bottom line is the Justice Department has the obligation to prosecute known crimes of that nature. And the fact that the private financial system has collapsed, that we're going into a scary recession and there are 2-plus wars going on don't change that obligation.

And, yes, the fact that Republicans, the national press and the Joe Liebermans and Lee Hamiltons of the world will howl in outrage over it also doesn't change that obligation.

Tags: bush administration, international law, torture