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I do not normally read the Washington Times, but as I sit in the National Democratic Club, someone gave me a commemorative copy of the paper, in which I read this:

President Barack Obama promised to restore the rule of law and to prevent future wrongdoing by high-level government officials.

To honor that promise, Mr. Obama should investigate, among others, former President George W. Bush, former Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld, former Attorney General John Ashcroft, former White House counsel and Attorney General Alberto Gonzales, and former White House political adviser Karl Rove. The crimes to be investigated should include complicity in torture, illegal surveillance, illegal detention, perjury, obstruction of justice and contempt of Congress. Prosecutions should follow if the evidence convinces a grand jury to indict.

The words are by Bruce Fein, a conservative who long ago turned against the outgoing administration, in an opinion piece entitled The Rule of Law, which is well worth the time to read.

More and few comment from me below the fold.

In case you have not now already read the entire Fein piece, let me offer a few more snippets with which to whet your appetite:

The glaring failures to prosecute many who were not deterred by the criminal law created a climate of lawlessness that moved from national security to the domestic arena.

Unpunished lawlessness by government officials invites lawlessness generally.

Punishment is certainly not the only vehicle to prevent wrongdoing. To avoid rape, for example, a woman might consider wearing a burqa to avoid arousing a man's sexual appetites. But she would lose her freedom and self-expression. The best way to deter rape is to prosecute the rapist.

President Obama is fully capable of simultaneously investigating or prosecuting Bush administration officials, addressing how to close Guantanamo, and grappling with the nation's economic travails.

 Immediately after this Fein uses the example of Nixon dealing with the Yom Kippur war while being investigated for Watergate.

And in a stunning rejoinder to a fellow conservative, Fein offers this

In the New York Times, Former Solicitor General Charles Fried has argued against prosecutions because the suspected Bush administration culprits fell short of the criminality of Adolf Hitler, Josef Stalin or Mao Tse-tung! That absurdity is akin to reserving murder prosecutions to the likes of Jack the Ripper.

Yesterday I had occasion to chat with a career attorney in the Justice Department, who told me that the career staff is just waiting for Eric Holder to take charge.  They are hoping he can find a way to remove some of those who were brought in politically and have burrowed in.  Of greater importance, he said that many did not see how the rule of law could be fully restored unless and until there were full investigations, with the possibility of ensuing prosecutions, for all in the administration who have violated the law.

He then added a further note, right after I told him that apparently the only exercise of presidential clemency was the two Border Patrol guys not being pardoned, but merely having their sentences commuted.  He said "Even if Bush preemptively pardons everyone, they should be investigated, a record created, and that record made available to any international tribunal that might want to try them for crimes against humanity."

Bruce Fein is a conservative.  The lawyer with whom I spoke describes himself as a moderate.  Both have a greater to commitment to the rule of law than they do to political ideology, for which we should be grateful, given the number of Members of the Bar for whom idelogy- political or legal - trumps all else.  

As for me, someone not a lawyer, who tries to maintain a sense of generosity, on this a day on which I want my own focus to be on celebration, on hope, on looking forward?  

I do not believe we can move forward until we account for the past, that investigations and the creation of a complete record MUST be a part of how we go forward, so that we can excise the cancers that have appeared in our body politic.  To do otherwise is the equivalent of putting a bandage upon a gangrenous limb - it will not prevent the eventual amputation or death, it merely covers over the destruction.

Let us look foward.  Let us insist that OUR government is accountable - to us, to international law, and to our Constitution.  To do so going forward requires nothing less than an honest accounting of how we arrived as where we now found ourselves.

My hope as always is embodied in one word:  Peace.   But Peace is far more than mere absence of armed conflict.  It is a state of wholeness, and wholeness is not possible unless we include all, good and bad, in our evaluation of our nation and ourselves.

Investigate.  Only after we know the truth can we determine how best to proceed.  To do otherwise is to give the lie to the idea of transparency in government, in accountability to the American people.

And now I offer my final word, after thanking Bruce Fein for the clarity of his statement.


Originally posted to teacherken on Tue Jan 20, 2009 at 06:38 AM PST.

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