A lot of people are wondering if the Obama administration will investigate and, if necessary, pursue legal proceedings against members of the Bush administration who violated the law while they were in office. President-elect Obama has sent signals that he is not inclined to make that a priority in his Justice Department.
Some beg to differ, including Dahlia Lithwick.
Nobody is looking for a series of public floggings. The blueprints for government accountability look nothing like witch hunts. They look like legal processes that have served us for centuries. And, as the Armed Services Committee report makes clear, we already know an enormous amount about what happened to take us down the road to torture and eavesdropping. The military has commissioned at least three investigative reports about the descent into abusive interrogation. Michael Ratner, the president of the Center for Constitutional Rights, has compiled what he believes to be sufficient evidence to try senior Bush administration officials for war crimes. More previously secret memos from the Office of Legal Counsel were released just last week.
Nevertheless, it’s clear that the first step will be a thorough determination of what has occurred. To that end, this week the House Judiciary Committee chairman, John Conyers Jr., introduced legislation for a panel to investigate the “broad range” of policies pursued by the Bush administration. Such a commission would not constitute a criminal investigation, but it would not preclude one either.
Some commentators have suggested that any such truth commission should promise immunity or a pardon in exchange for truthful testimony, but I believe that if it becomes clear that laws were broken, or that war crimes were committed, a special prosecutor should be appointed to investigate further. The Bush administration made its worst errors in judgment when it determined that the laws simply don’t apply to certain people. If we declare presumptively that there can be no justice for high-level government officials who acted illegally then we exhibit the same contempt for the rule of law.
It’s not a witch hunt simply because political actors are under investigation. The process of investigating and prosecuting crimes makes up the bricks and mortar of our prosecutorial system. We don’t immunize drug dealers, pickpockets or car thieves because holding them to account is uncomfortable, difficult or divisive. We don’t protest that “it’s all behind us now” when a bank robber is brought to trial.
It’s understandable that Mr. Obama does not want to spend the first years of his administration going back over the misdeeds and crimes of the last administration. But if we’re truly going to have “change we can believe in,” one of those changes needs to be a clear signal that we as a nation of laws don’t let people get away with breaking the law. It should be done with care and without rancor and the understanding that there is a difference between revenge and justice. But to not hold people accountable for their actions because it might send the wrong signal sends exactly the wrong signal.