Should George Bush and others in his administration be prosecuted for various actions is answered with a resounding yes! if you’re Vincent Bugliosi, author of The Prosecution of George W. Bush for Murder. And, while most other critics who favor prosecution argue that lesser charges should be brought than Bugliosi would like to see, they believe it would be mistaken to let the actions of Bush, Dick Cheney, Donald Rumsfeld and crew fade into oblivion. For one thing, the main thing perhaps, allowing these leaders to escape unscathed for their actions means we can pretty much count on a repeat – only worse – a few years or decades down the road.
It's hard to imagine anybody who's watched Torturing Democracy could suggest that nothing should happen to the characters who promoted, encouraged and even set rules for torture.
But Obama advisor and Bush enabler Cass Sunstein sees things just that way. And, apparently, so does Clinton era Department of Justice official Robert Litt. As noted in today’s Washington Post:
Obama will have to do a careful balancing act. At a conference in Washington this week, former department criminal division chief Robert S. Litt asked that the new administration avoid fighting old battles that could be perceived as vindictive, such as seeking to prosecute government officials involved in decisions about interrogation and the gathering of domestic intelligence. Human rights groups have called for such investigations, as has House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).
"It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," Litt said. "It would really spend a lot of the bipartisan capital Obama managed to build up."
Vindictive. Vengeful. Partisan. Punitive. Divisive. These words have come to describe those of us who have watched the Cheney-Bush horror show of the past eight years unfold and want to see something done about it. Our problem, we are told, is that prosecuting or attempting to prosecute anyone in the outgoing administration would be a distraction for the incoming team at a time when the new President and Congress need to focus their undiluted attention on "more important matters."
Moreover, any prosecution might make some prominent Democrats edgy given that they were secretly briefed on the CIA’s torture and acquiesced in it. The amendments to the War Crimes Act contained in the Military Commissions Act of 2006 made it tougher to prosecute anyone for doing what sources as distinct as the Red Cross and Jane Mayer in The Dark Side have called war crimes.
Then, too, Bush might, as James Ross at Salon reported last summer, issue a blanket pardon for anyone involved in torture. Under such circumstances, what, some ask, can be gained by even talking about bringing these guys into court?
The widespread perception of prosecution as both dangerous and diversionary has also led quite a number of people to argue that even an investigation into the doings of Bush, et al., would sap energy away from crucial tasks. If prosecution is out of the question, goes this reasoning, what is the point of investigating?
On the surface, this might appear to be wise counsel. A multitude of crises certainly do require immediate attention. But treating torture, rendition, abuse of executive power and fabrication of intelligence as distractions to be abandoned leaves these matters forever unresolved. Which raises troubling questions. Will they happen again? Will they be worse next time? If our leaders and their minions were doing things we have already gained some inkling of, what else were they doing for which we haven’t yet seen the secret memos?
In other words, not investigating, not knowing, becomes the distraction.
Fortunately, according to Mark Benjamin at Salon, there’s some reason to believe that the Obama administration will investigate even if it does not attempt to prosecute. The Obama plan, he writes:
...is gaining currency in Washington as Obama advisors begin to coordinate with Democrats in Congress on the proposal. The plan would not rule out future prosecutions, but would delay a decision on that matter until all essential facts can be unearthed. Between the time necessary for the investigative process and the daunting array of policy problems Obama will face upon taking office, any decision on prosecutions probably would not come until a second Obama presidential term, should there be one.
The proposed commission ... would examine a broad scope of activities, including detention, torture and extraordinary rendition, the practice of snatching suspected terrorists off the street and whisking them off to a third country for abusive interrogations. The commission might also pry into the claims by the White House -- widely rejected by experienced interrogators -- that abusive interrogations are an effective and necessary intelligence tool. ...
In Obama's camp, there is a sense among some that such a commission would essentially mean letting Bush get away with crimes. "People have called for criminal investigations," one person familiar with the talks told me this summer as plans got under way. On Wednesday, a person participating in the talks confirmed that some people involved in the planning felt strongly that the commission would amount to "bullshit" and that Bush officials should be prosecuted to the full extent of the law.
A few outsiders take an even harder line. As I wrote last summer in Ixnay on Letting Bygones Be Bygones:
For some progressives, the lack of enthusiasm for a [1975-76 Frank] Church-style committee emerges from the certain knowledge no conceivable congressional probe will ever take a gander at the machinations of bipartisan American empire, so why urge any poking around at all? From such a perspective, any investigation will simply be an elaborate pretense run by Democrats and Republicans to lull Americans into thinking something is actually being achieved even as the corporatist elite continue their plunder and rapine as usual.
A commission might indeed turn out to be "bullshit." And it’s a certainty that no presidential or congressional panel will dig deeply enough to suit everyone. But BS need not be a properly constituted commission’s output. Whatever its defects, even today the Church Committee remains a wealth of information about government abuse of power and the source of legislation – weak as it was – for curbing future abuses.
Defeating accusations of partisanship and vengefulness could best be achieved by making this an independent citizens’ commission that includes no sitting members of Congress, a reasonable deadline, ample money and full subpoena power to do a comprehensive job. If immunity is required to get at some details, the commission should have authority to grant it. Then, when all is known, nine months or a year down the road, see if today's naysayers change their minds about prosecution.