http://www.openleft.com/showDiary.do?diaryId=11632

First, as we have seen recently, intransigent congressional Republicans have stymied Obama’s plans to stimulate the economy. Lets see how they react to a trial of George Bush. During a time of economic catastrophe it would be imprudent, indeed almost impossible, to achieve economic recovery while investigating the Bush administration. And to this extent, I agree that Obama is informed by PR, in that popular support for this administration would be seriously diminished if he were to begin what certainly would be, a momentous investigation during a time of economic catastrophe. People receiving pink slips would rightly feel pretty aggrieved if the administration were to focus its attention on the previous one. And it certainly isn’t that I think the country ‘should move on’, it’s that I think it is politically impossible to achieve. As I mentioned above, an attempt prosecute would be cement that impossibility given that some of the Democratic leadership were well aware of the torture program (one of the many crimes of the Bush administration). This, I feel, is not an excuse but rather a very real obstacle, which would require significant effort from the administration for something that is unlikely to render any significant results in the long run. In this respect I believe that the choice is mutually exclusive; to begin an investigation would not only alienate many Republicans but many of his own party, limiting his administration’s efficacy to direct an economic recovery.

Now that is not to say that I think holding political elites as accountable as the next person is not that important. Indeed, I believe it is essential for a functioning democracy. However, like I mentioned, the time for holding Bush accountable was in 2006 when Democrats could have impeached him, but Pelosi took it off the table. And this is where I feel that Obama can indeed prevent future executive abuse, and also where disagree with you Mark. I don’t believe that to prevent future executive abuse we need to prosecute Bush, Cheney et al. After all, I think that is impossible to achieve given the reasons cited above. We actually have the means to hold the administration accountable in the very opaque form of impeachment. I believe that because of the vague requirements for impeachment, as mentioned in my piece above, it provides limited definition for voters to get behind and pressure congressional Democrats, but more important, the current definitions provide few tools for right-minded representatives to cite. Having a definitive list of crimes for impeachment would give little room for future equivocators, like Pelosi, to dance around the subject. Defining the crimes would effectively empower the rule of law and disempower political interpretation.

I would also like to mention that ultimately, after watching Bush lie to the nation and trample over the constitution, it is difficult for me to advocate not prosecuting him. It’s that I think it is impossible to achieve, and to attempt to do so would be to limit the scope of Obama’s efforts to address the economy. The key is not to let it happen again, and that, I believe, can be achieved by giving teeth to impeachment.

However, if the Bush administration is not held accountable for the laws it has broken — and it has broken laws, no doubt about it — then it will only encourage future administrations to break the law. Perhaps Bush and Cheney themselves will never be brought to trial, but certainly someone must be. It’s true that Jefferson never prosecuted Adams for the Alien and Sedition Acts; however, William Marbury did press the issue of his rejected appointment as a Justice of the Peace of Washington, D.C. And thanks to him, we have Marbury v. Madison, perhaps the most important Supreme Court opinion in United States history.

I don’t think the options are mutually exclusive. The Bush administration operated in secrecy for eight years, telling Congress only what Bush thought Congress needed to know (or, at least, the minimum they had to know to keep everything barely legal) about torture, wiretapping, extraordinary rendition, and political firings. He stonewalled Congress at every turn, and even in political death, he rises from the grave to prevent Karl Rove from testifying before Congress due to a misguided and heretofore unchallenged theory of “executive privilege” that would never withstand judicial scrutiny. What is at issue here is P.R; Obama does not want to appear divisive and so he is not being proactive in prosecuting Bush offcials for the crimes they committed.

You have importantly brought up the issue of complicity. Perhaps one reason that investigations are not proceeding at lightning speed is due to the fact that some key Congressional officials were briefed on these programs and let them continue, anyway. To shed light on the Bush administation’s wrongdoings would be to simultaneously shed light on their own sanctioning of these wrongdoings. But this is not an excuse.

We throw the maximum punishment permitted under the law at crack dealers, nonviolent drug offenders, and teenagers who take naked pictures of each other and send them to their girlfriends and boyfriends. What kind of country is this in which all of the above pithy things can happen, but government officials are not prosecuted for torture, for illegal wiretapping, for sending people to foreign countries for the express purpose of being tortured there? A lot has happened of the last eight years, most of it behind a magic curtain of “executive privilege” and “national security.” To let those crimes — which are properly called “crimes” because the actions undertaken were in violation of the law — stand unpunished would be to send a signal to political elites that it’s okay to break the law, as long as it’s done in the “best interests” of the country and with “good faith.” Of course, there’s another phrase that’s not mentioned: “under color of law,” which appears in the Foreign Intelligence Surveillance Act and which is explicitly a crime.

If not Obama, then at least the Senate or House must take the first step in punishing lawbreakers and saying that, under no circumstances will we compromise the values that we are allegedly fighting for, and if there are people who have compromised those values, they will be punished appropriately, regardless of who they are.