On Looking Forward

Dahlia Lithwick doesn't seem to have much patience for the argument that we should look forward as the Bush Administration is replaced by Obama's:

Those who say that there should be no investigation or prosecution of senior officials who authorized torture and warrant-less surveillance rarely even bother offering legal justifications. They argue that the Obama administration has more urgent problems to contend with. They insist that any such process would devolve into partisan backbiting from which this country could never recover. And they insist, as did Attorney General Michael Mukasey in early December, that there is no basis on which to prosecute the architects of torture and wiretapping policies because each was acting to “protect the security in the country and in the belief that he or she was doing something lawful.”

I personally wouldn't say "there should be no investigation or prosecution of senior officials who authorized torture and warrant-less surveillance"; I would say "If Justice Department officials are aware of crimes, they can consider whether or not to prosecute them". (And here I mean "consider" in the sense that any prosecutor evaluates a case, and choose to prosecute some while passing over others.) I take issue with bringing out the muckrakes and trying to dredge new indictable offenses out of the Bush Administration's... I suppose there's no real need to continue that metaphor; you get the point. There's lots of muck to rake, but there's a real cost and risk in choosing that path.

Of all of the reasons not to prosecute that Lithwick attributes to opponents of (large-scale investigation and) prosecution, the only one I agree with is this: "the Obama administration has more urgent problems to contend with". Sure, the cost of any distraction that resulted from a full-scale investigation of "the crimes of the Bush Administration" would have to be weighed against the benefits of finding and prosecuting crime. Would the benefits, either in the long- or short-term, outweigh the costs? Lithwick apparently believes they will; I suspect otherwise. Lithwick implies that the decision should be made on legal grounds, not practical or political grounds, but even if that's technically possible the nation will nonetheless interpret the choice to prosecute through a political filter.

Others — including unnamed officials on the Obama transition team — have already claimed that there is simply no political will for criminal prosecutions, or even a truth commission.

Is that untrue? I personally haven't sensed a strong public sentiment toward either an independent counsel or a truth commission. If Lithwick is seeing a strong grassroots movement, or is aware of opinion polling suggesting otherwise, I would welcome more information.

We are telling ourselves that bad people did bad things under bad circumstances, but that it’s better to forgive and forget, that we are really truly sorry and it won’t happen again. We sound like a nation of drunks after a bender. We are full of good intentions, but unwilling to hold ourselves to account.

Actually, I have very little sense that a large number of people on either side hold that mindset. I sense that there are people, including myself, who are very worried that the Bush Administration's bad policies will happen again, and that some will be carried forward into the Obama Administration. I've even heard some Bush critics cynically suggest that Obama doesn't want to take action because he doesn't want to tie his own hands. On the other side, there are partisans who would not admit (and perhaps can't contemplate) that any act contemplated by the Bush Administration was wrong, or that any action nominally taken "in the interest of national security" should ever be second-guessed. The number who argue, "We meant well but we were wrong, so let's let bygones be bygones?" They're probably out there, somewhere; I'm just not running across them.

Lithwick argues,

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

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.

Although Lithwick correctly states, "It’s not a witch hunt simply because political actors are under investigation", I disagree with her suggestion that nobody wants the witch hunt / public flogging of former members of the Bush Administration. I believe that some people very much want that, and that they will overshadow the motives of those who want an investigation focused upon determining facts and preventing the recurrence of bad acts. Frankly, as long as you leave the threat of special prosecutors and indictment hanging over the witnesses, all you're going to get at your hearings is a long succession of people who either refuse to testify or, after being subpoenaed, recite, "On advice of counsel, I hereby respectfully exercise my Fifth Amendment privilege against self-incrimination...."

If our world were more ideal, Lithwick's view would prevail - and an efficient, entirely non-political investigation would quickly reveal important truths, help ensure that crimes were punished, help prevent similar crimes in the future, etc. Nobody would have to worry that the prosecution would be perceived as politically motivated, because that would be unthinkable. (But in a world that ideal, we wouldn't be in this position in the first place, would we?) I hate to drag practical concerns and politics into this, but in our often dystopian world and under our imperfect political system that's an unfortunate necessity.

Didn't Ken Starr initially have a very high approval rating, and broad popular support for his Whitewater investigation, before it went metastatic in its "leave no stone unturned" quest to get Clinton? "Oh no", his defenders protest, "he only investigated possible criminal acts he found during his other investigations". "Even if Starr ran amok, this time will be different", proponents of a sweeping investigation of the Bush Administration contend. Yeah, right.

Obama's Correct To Look Forward

Without wishing to minimize the bad acts committed by members of the Bush Administration, the need to prevent recurrence, or even the instinct to seek a bit of revenge for the Clinton impeachment, I just can't get on board with this mindset:

Worst of all, Obama (in response to Stephanopoulos' asking him about the number one highest-voted question on Change.gov, first submitted by Bob Fertik) all but said that he does not want to pursue prosecutions for high-level lawbreakers in the Bush administration, twice repeating the standard Beltway mantra that "we need to look forward as opposed to looking backwards" and "my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing." Obama didn't categorically rule out prosecutions -- he paid passing lip service to the pretty idea that "nobody is above the law," implied Eric Holder would have some role in making these decisions, and said "we're going to be looking at past practices" -- but he clearly intended to convey his emphatic view that he opposes "past-looking" investigations. In the U.S., high political officials aren't investigated, let alone held accountable, for lawbreaking, and that is rather clearly something Obama has no intention of changing

Now I'll grant that there are circumstances when we should look backwards and criminally prosecute bad actors from an outgoing administration, and I'll concede that it's difficult to articulate the circumstances under which that is or is not appropriate, but here's one small measure: If the sins aren't sufficient to trigger impeachment by a Congress controlled by the opposition party, that alone raises a serious question not only about whether they are so serious as to trigger criminal investigation and prosecution, but also whether the opposition party shares culpability for having failed to act sooner.

An after-the-fact appointment of a special counsel, whose job is essentially to dig for criminal acts and prosecute those who committed crimes, not only can be easily spun as "revenge for the Clinton impeachment", but sets a precedent that could haunt any outgoing administration, no matter how squeaky clean. Didn't Ken Starr teach us, no matter where you start out, if you keep expanding the scope of your investigation you will eventually find some opportunity to accuse somebody (rightly or wrongly) of crimes, coerce witnesses, set perjury traps... create a great deal of pain and disruption for the nation and its governance and, at the end of the day, quite possibly accomplish nothing meaningful?

Another problem is that when you create a sideshow of the type proposed, it can take everybody's energy and attention away from the very real issues we must address, while looking forward. Thanks in no small part to Bush, this nation has a lot of very serious problems that need to be quickly addressed. The investigation and prosecution of a host of officials of the outgoing administration has the potential not only to interfere with the new administration's focus, it could polarize the nation, and make the Dems seem as small, petty, obsessed, biased and vindictive as Ken Starr looked to them when he finally released his report.

If Justice Department officials are aware of crimes, they can consider whether or not to prosecute them. There are issues that the new Congress should investigate, and it's possible that crimes will be uncovered there as well. We don't need to look away from the past. But despite the temptation and opportunity, and a mile of muck to dig through, I don't think it's necessary or wise to start appointing special prosecutors to ferret out people and acts to prosecute. Even if it doesn't end up looking as counter-productive as Ken Starr's investigation run amok.