Last I checked at least when it comes to the President (and those he chooses to pardon) there is very little to fear from the law. Yes, Nixon was hounded from office under threat of being held accountable to the nation's laws. Then he was pardoned. A combination of your bank account and who you know usually renders you exempt from the law and immune to punishment. Always has been, always will be.

i like the idea of an independent special prosecutor. any suggesetions, internets?

Agreed. It's a tough call for Obama, because the last thing he needs is for his new administration to get bogged down in a messy and lengthy prosecution of former Bush administration officials. But to just look the other way and fail to take any action makes a mockery of our laws and our Constitution.

It's possible that the Democrats are worried about culpability for Intelligence Committee members who signed off on torture (though we can't be certain just what they know). For some of the nastiest stuff, the senior Democratic members (but not all of them) were briefed. This includes Nancy Pelosi.

While just being briefed isn't as bad as actually ordering the bad acts to be carried out, it might cause the affected members to quietly lobby against investigations.

It seems premature to discuss this before Obama takes office. First, if President-elect Obama shows hawkishness in pursuing charges, Bush simply pre-emptively pardons those involved (something he's likely to do in any event). This would give Bush a bit of political cover since he can claim the pardons are a reaction to partisan attacks. As it is now, if Obama indicates he'll not pursue charges, then Bush has less wiggle room, and will essentially be admiting that he believes what his administration did WAS illegal.

International war crimes tribunals can be nonpartisan and are pardonproof.

Some sort of truth and reconciliation commission would be more effective at restoring the balance of civil society than outright prosecutions.

re: steve duncan, i think it's less important that the torture cabal actually serve jail time (unfortunately, probably impossible) than that they are exposed for the moral lepers they are. Even if we can't actually get Cheney et al. through the courts, we can still establish he DID torture, DID break the law, and sentence him with the verdict of history.

Then we can ask our children, do you want to end up like Dick Cheney?

Presidential pardons for outgoing administration members, or a decision by the incoming administration not to investigate/prosecute simply perpetuates the revolving door of business as usual Washington politics. Many of Bush's people were former Nixon cronies, or Iran-gate crooks - indeed Paulson is a former assistant to Erlichman. Many of Obama's people/advisers are Cold War warriors/interventionists. After a brief, well paid spell in corporations or lobbyist groups, they return, without a blemish on their record, to pick up where they left off. For this reason, U.S. policies, both foreign and domestic change but little. Trials are needed if change under Obama is truly to be achieved.

With all due respect to other posters, this is an EASY call. During Iran/Contra, many - many - folks in Reagan's admin committed black letter treason. At the time, Reagan was on his way out, people had been embarrassed, etc, and the overwhelming Inside-the-Beltway thinking was "Let's put this behind us."

Fast forward: many of the same dirtbags who ran Iran/Contra resurfaced to be in the forefront (as, hard as it may be to believe, respected public servants, and then actual appointees with operational duties) during the run-up and management of Iraq II.

These assholes were responsible for the defacement of the Constitution and, more tangibly, the deaths of hundreds of thousands of civilians in Central America and the Middle East, and the ones who are young enough will be around for the next RW foray into mass murder.

Some of these people need to go to prison, for serious time. Period. This isn't a question of what Obama does or doesn't want to get bogged down in, it's a matter of Law and reclaiming the idea, among friend and foe, of what America stands for.

The right would characterize the trials as partisan witch hunts and anyone actually convicted would become an instant martyr. Shine a light on what was done, who did it, and leave it at that.

I agree with JWK, that basically it would be unwise to declare anything at this time. I think the best course of action right now IS to declare that, "It is doubtful that we will do anything about these allegations." That way they don't raise the hackles of BushCo AND still leave the door open to do what needs to be done when the time comes. NOW is not the time to say, "We're a-gonna turn yore ass in, Mr Bush!" That would be monumentally stupid.

I also agree with Hilzoy that a Special Prosecutor is the right approach, and agree with Hilzoy's suggestion that it be a totally non-partisan person, too.

I completely disagree with Andrew that outright prosecutions should be avoided. Outright crimes are plainly against the law, and if it was any normal citizen we would have to pay dearly for crimes we could be proven to have violated. Anything less is counter to the America of history. Should Tammany Hall have been allowed to get away with corruption? Should Spiro Agnew have been let off scot-free for his corruption? Is starting an illegal war based on provable lies grounds for prosecution? IT IT UP TO THE COURTS TO DECIDE THESE THINGS, NOT OBAMA'S.

The 5th Amendment begins:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger...

And IF a Grand Jury - NOT a Special Prosecutor (who would only bring the allegations and some evidence before that Grand Jury) - indicts, then and only then would any prosecution begin.

All we have to do is follow existing law.

But we also need to NOT alert them that it is coming.

FYI Ms. DeFarge: Your AP link goes to Marshall's joint.

Archibald Cox is probably a bad example. He got fired by Nixon in the "Saturday Night Massacre." The example you were probably trying to avoid by citing Cox was from the era after the enactment of the Independent Counsel Act: Ken Starr.

hilzoy's point is not about conceding political reality or taking measures to (only) restore the balance of civil society. It's about upholding the rule of law. The Executive Branch cannot be above or outside the rule of law. It's that fundamental. A special prosecutor is the right call. But as for "someone with an unimpeachable reputation for wisdom, rectitude, and non-partisanship"? No one in our country fills this bill. Not even Fitz, although he comes closest. And he is the person I would charge with the burden.

Most of you here are not of an age to have been politically aware and educated sufficiently to know what was what during the last great crisis, Watergate. I was both (in fact, I was on both the COINTELRPO list and Nixon's Enemies List).

As much as I wanted to see Nixon's shovel nose sticking out from between bars, as one of the special prosecutors put it at the time of Ford's pardon, 34 years later I am of the opinion that Ford did the right thing. If you weren't there, you really don't know just how awful things were with what did go on. The past eight years were a walk in the park in comparison. The country really couldn't have stood the prosecution and trial and conviction of Richard Nixon.

Much as I would like to see Dick Cheney in an orange jumpsuit, chained on a concrete floor in a small, cold, dark, room, the situation now is even moreso from what was back in Watergate. We really can't afford it.

The United States is in the position of a third world country just coming out from under a long-time fascist dictatorship, in which the fascist movement was not smashed and is still in existence, and can still cause more trouble than most people here are willing to consider.

Like Chile, like Argentina, like South Africa, like Spain after Franco, like the Eastern European countries that came out from under Stalinism, the best we can hope for (and we can get it if Bush issues those blanket pardons, since those pardoned will not be able to assert any 5th Amendment privileges) is a Truth and Reconciliation Commission. If it's done and done right, it will so amaze the average American about just how criminal was the regime they voted for twice that the Republican brand will be as dead as Francoism is in Spain today.

Yes, it is indeed justice denied, but right now we have a country to put back together and too many crises that can really sink the ship to deal with, to fixate on Bush, Cheney, and the rest of the Orcs, no matter how personally emotionally satisfying it would be.

I never ever thought in all my 64 years and everything I have seen and fought for the past 44 years that I would be comparing the United States of America to post-Generals Argentina, post-apartheid South Africa, post-Franco Spain, post-Pinochet Chile, or post-Soviet eastern Europe. That kind of shit happens in those kinds of places, not in America! Except it did, and we are now humbled to realize that indeed, "it can happen here."

We don't have to prosecute them. Just honor F.O.I.A. requests and embarrass the shite out of all involved. Give each and every one face recognition. To the point where they can't walk into a stranger bar without being recognized.

I'm with the rule of law camp. I'm a lawyer, I teach Constitutional law part time, and I see no reason why political considerations should enter into a decision on whether to prosecute persons involved in kidnapping, torture, and murder. If Right Wing talk show hosts want to make hay- let them. But let's get real here: this is all about talk radio, Fox news, and the noisy (and always wrong on their facts and their law) hate and fear mongers who have gained national prominence. My reaction: let them complain all they want. They have a First Amendment right to be loudmouthed assholes. But don't ever base decisions on applying the criminal justice system on who might complain or try to stir up the passions of the ignorant.

Another point: it's only a distraction to the media, which can't digest more than one story at a time. It's not a distraction to governing. We do have a separate cabinet department to handle criminal prosecutions- it's what they do, day in and day out.

But if I have to predict: Obama will bury it because he wants to heal the divisions of the country, and like Lincoln who was initially willing to allow slavery to continue in order to preserve the Union, Obama will sacrifice justice and the concept of equality under the law for national comity.

The prosecution of Bush administration honchos for abuse of detainees or abuse of executive power probably would hit a judicial brick wall. The federal circuit and appellate courts in and around D.C., where such cases would be tried, are stacked with right-wing judges ready to shut down prosecutors. And this Supreme Court would not reverse their rulings.

The Obama administration's more constructive course would be the fullest possible exposure of Bush-era abuses. Put the facts before the public, and force the offenders to try to justify their actions. Hunt the witchcraft and you'll effectively purge the witches.

If we assume that the DOJ will investigate and prosecute Bush Admin officials who did bad things, it is guaranteed that this process will dominate the news.

I would love nothing more than this investigation, but it sucks oxygen from more important things. Yes, if successful, Bush could go down, but he might go down as a victim. Our government needs to prevent, investigate and prosecute crime, but these crimes belong to us. We, collectively, as a people, allowed them to happen.

Should we spend energy on this now, or maybe wait until we have solved more important issues?

Remember that the Bush Admin crimes have no statue-of-limitations, and for good reason. Distance is required, and time.

Whether she intended it or not, Pelosi has made sure that impeachment will never be used in this nation again. Her refusal to at least start impeachment proceedings against the most corrupt and most unpopular president in American history ensures there will never be a reason strong enough to impeach again. This is the only legacy Pelosi will be remembered for in history. She claiamed it would impede "policy making"...which policies were those madam speaker??

The dems inadvertently rendered the constitution secondary to political expediency..."Yeah, yeah, I know it says that but we got better things to do" is essentially what Pelosi's response was to the checks and balances of our dear constitution.

They got away with all of it. Why anyone should believe in Justice or the rule of law now is debatable for Obama's and the dem's lack of accountability for obvious law breaking that took people's lives clearly says the law works according to who you are. When our leaders are beyond the rule of law then we no longer live in a democracy but in a totalitarian state where kings and princes and knights determine which laws to enforce depending on who you are.

If Obama believes that by ignoring accountability for this last regime's actions things will just go back to normal he lacks vision and is paving the way for a dictator to come to the stage of American politics. There are Paliens everywhere just waiting to pick up where Bush left off without fear of ever being held accountable and Justice has been reduced to whatever you can get away with.

I knew 2yrs ago that this would be what the dem leaders would try to pull off...forget what has been done...too much hassel to hold them accountable...forget about it , we're in power now, etc.. We must establish a "people's court" for high crimes and misdemeanors of government employees that bypasses congress. Right now the only way Americans can get Justice for our leaders is if another country intercedes as we have proven incapable of dealing with our own.

So many good points made here; I'm swayed numerous ways on this, but I am warming to the idea of a very well-run truth commission, especially if blanket pardons are issued. The results would have to be loudly disseminated, just as any entities who stymie investigations into their culpability should be pointed out before they are successful.

Cut myself off! I hate when he does that.

I was wondering; Couldn't we still have prosecutions regardless of a truth commission, at least for the most grievous actors?

I'm with expediency - Truth & Reconciliation, with a strong Caveat - Special Prosecutor, and an investigative body in Congress if necessary, if T&R seems ineffective.

T&R with teeth.

Our constitution, and respect for the law, has been laughed at at the highest levels, and among the most privileged. If they feel attacked they will respond with overwhelming force.

If they are given an "out" they will turn the firing squad in a circular fashion so we can shine some light on the worst injuries to the law.

Our job is to let them know that we're after the rot that harms everyone. If we sound like 'vengeance is ours' we're doomed as surely as we would like to end the rule of those who have brought this country to the brink.

Justice must be served. I agree. If not by the government then by the populace, justice will be served.

Ross said it best. Ship them to the Hague.

Ahh, the sellout-o-meter is now officially counting.

And, rather than notice a bit of bitter aftertaste in the Obama-Aid, people here are offering him helpful suggestions on the dual false premises that he would:

A. Actually listen to them;
B. Actually WANT to listen to them.

That's why I voted Green. Unfortunately, we don't have a Socialist party in Texas. And a real one, not one of Bernie Sanders fakes.

“Even if we can't actually get Cheney et al. through the courts, we can still establish he DID torture, DID break the law, and sentence him with the verdict of history.�

For me just being a regular guy then thinking about politics more often makes my mind fly open again. Here, the above repeated quote again highlights a point about the way Americans already think about addressability and accountability with respect to law. Please no offense to the author of the comment, I also agree with and personally feel is the last resort if anything at least a long time National and International embarrassment would justify the issue.

But honestly this perpetuates that idiosyncrasy, leaving open that foolish on going basic element of the, Culture of Corruption. Worse, it instills the comedy medium to say hay you want something kooky, we have comedians and movie celebrities running for office now. Here this shows in how crazy our social ideals are. Here, it maybe funny for the moment but hell for the good real world values everyone need to live by. Sorry, for me Arnold Schwarzenegger is a good example of a politician that doesn’t work any better. Actually worse. We make laws to identify wrong in our social issues, if we let them slide; it only promotes chaos and uncertainty. Guess what, America is surrounding with a whole lot of that stuff right now for not addressing accountability to Bush and Company.

There already is a division, in the news media, and the political circles. Being a common citizen one can get creamed and condemned more easily by the law and the media, but if you’re an elected official it is harder to pry one out of the system. The media starts ranting witch hunt.

So, the dilemma is there, has been with us and continues to be side tracked by those in power, those in the media similarly pull out a sort of “Race Card / Parisian witch Hunt Thing�. Just as Blacks use the Race card thing Politicians use the witch hunt thing “Called a Parisian Witch Hunt�.

The modern way to get or pull the get out of jail card. Whats really funny is a loaded political publisher will come out of back ground and offer a “Book Deal� like Palin is getting and then they “Got Money�. Ann Culter, Dick Morris, and a legion of political people making books loaded with smear and scandal are all on television making a book promotion.

For me a prophecy is in the making that an explosion of law suits in slander is going to take place in the future, far from a side show of shame. The talk shows thought they were in for a surprise. Well those who bang out a book to burn someone in going to surface in heated controversy. Too many authors are hugely biased like those that appear on MSNBC such as Christopher Hitchens who makes my point clearly and openly said today on Chris Mathews show, describes by saying he can not use that word he wants on the air. What word? This begs the question does he use that word in his Internet Article on the Vanity Fair web site? It opens a sense of mystery and uncertainty, not very objective yet agreeable by Chris yah I know what you mean! Well America do you know what he means. Then it’s Machiavellian? What the hell does that mean? This whole thing is a lie, and then do you trust the Clintons? Did they murder that guy you know Vince Foster? What kind of money does Clinton make but he does a good job? Sheesh. Where is this guy, Chris Mathews going???

As one famous general said “NUTS�

Truth and reconciliation? That works in countries that have developed an intense, life-threatening allergic reaction to the target element of the body politic. That has not happened here. The noxious element enjoys the active support of between 30% and 46% of the voting population, and has the support of the majority of the nation's wealth. Does anyone here remember Oliver North testifying before Congress in the Iran/Contra hearings? All that a fangless set of hearings would do is to give these monsters a soap box, and permit them to play victim in front of the cameras. Would the media offer "balanced" reporting? You betcha.

This isn't a political issue. A crew of bastard ideologues have turned key parts of the machinery of government into steaming wreckage. It's now a clear choice between either running prosecutions like a nation of mature men and women, or giving up on the rule of law nonsense, returning to the cubicle, and getting on with the mortgage payments and the next five-year plan.

I would be dismayed to see the nation waste time and taxpayer money on the idiotic and counter-productive feel-good spectacle of a "truth and reconciliation" exercise. If I had loved ones who were directly affected by the pack of criminals currently running the US government, I'm sure that the mere thought that the United States might "put this behind itself" so painlessly would make me gag.

So it seems to me, anyway.

Has none of you, including Hilz, not considered the obvious?

A trade-off?

No prosecutions in exchange for no blanket pardon?

Geez, a blind hog could find that acorn.

No prosecutions in exchange for no blanket pardon?

The contract would be void, because it has an illegal purpose.

The problem anyone faces in making these prosecutions is the doctrine of sovereign immunity. The sovereign is immune for being prosecuted for doing sovereign-y stuff.

Now the Obama administration could engage in such a prosecution on the basis of executive power, but in general presidents are loathe to set precedents for limiting the power of the office.

You and I can't sue the federal government for doing federal government stuff, whether we like it or not and whether we believe it is "legal" or not.

In this case, one could easily elaborate the doctrine beyond tort claims to a general principle of holding previous administrations immune from prosecution.

There are lots of political reasons why Obama wouldn't want to do this -- not the least of which is the fact that he might want to retain the power to do it himself -- and the sooner we start adjusting to the governing reality, and not the campaign reality, the better off we'll all be emotionally.

This doesn't mean that Baltasar Garzon or some other nation's court won't file charges -- I expect they will.

It does mean that there is an infinitesimally low probability that Obama will want to squander political capital on what would surely be seen as pandering.

As for Truth & Reconciliation -- not a snowball's chance in hell. We already know the Truth. Now we have to get reconciled to the reality.

The problem isn't just that it would be bad for him to be seen as carrying out a partisan witch hunt; it would also be bad for the law, and for these prosecutions, if they were seen as a partisan witch hunt.

Sadly, that's true. And it's also true that the party of the Starr Commission, the Clinton impeachment, Iran-Contra and Watergate will insist that any prosecution of Bush or Cheney or their minions is a "partisan witch hunt," no matter how blatant and obvious their criminality.

I think his entire presidency wouldbe bogged down in unending prosecutions, legal wrangling and partisan warfare. There are too many critical problems facing the welfare of the nation for attention to be turned elsewhere. I think he's made it abundantly clear that those policies of bush/Cheney will end under his adminstration.

Also, I hate to say it, but the American people share the blame. In 2004 we learned of the torture and atrocities and we still re-elected George Bush. It was giving the American people's stamp of approval. The whole thing was truly a national disgrace...not just that of the Bush adminstration. We knew, we re-elected him, we are responsible.

I think his entire presidency wouldbe bogged down in unending prosecutions, legal wrangling and partisan warfare.

I think Obama's presidency is likely to be as well, given the massive bad faith of the modern Republican Party.

But given that, Obama should go on the offensive and bring the prosecutions first.

I take some small comfort in the fact that most of the torturers such as Cheney, Addington, Yoo, etc. can never again travel overseas without fear of arrest and prosecution. Even if the US does not prosecute, nothing stops a crusading Spanish, German, Dutch, etc. magistrate from issuing an arrest order and snatching these men up if they're found outside the borders of the US.

The Obama campaign camp stood above the fray of nastiness, and I like it that's a trademark of his. He has a job to do, and a big one at that, here in the USA.

That being said, there will be other world authorities that hopefully will want retribution from Bush and Co., so I say let them have at it. I agree with others about The Hague is the perfect venue.

I've read before that if prosecution is ruled out here, it gives the international community an opening.

Nope, Democrats don't believe in holding people accountable, they can't even hold one of their own accountable in the Senate, why would you expect any different here?
We're too busy trying to emulate the "team of rivals" nonsense, appeasing the right, and letting everyone know how weak and ineffective we intend to be--no time for all this "rule of law" stuff. Wouldn't want to rock the boat.

I agree with those who would have an international tribunal prosecute these crimes. Prosecution here in the US would carry far less weight to begin with, and we lost any moral claim long ago when we failed to impeach Bush. However logical and morally right, this would indeed devour all of Obama's political capital, and sap the nation's energies at a time of prolonged crisis - flying in the face of Obama's core values. Advocates for prosecution also are assuming a foregone conclusion of any trials - never something to take for granted.

But viewing the film "Torturing Democracy," the cry for prosecution is entirely understandable.

i just wanna add that letting bushies skate over torture would send a terrible message to the rest of the world...both to our allies and our enemies....

They've got away with it, categorically; anyone who talks about prosecuting Bush and Cheney [for war crimes] is kidding themselves.

--Seymour Hersh in the October 19 Guardian

I don't post that with any glee; I just find the insistence that of course prosecutions must happen incredibly naive. Powerful people get away with things all the time, and life goes on; and Americans never punish presidents for foreign policy crimes (Nixon's widening of the war, Iran-contra under Reagan), primarily because they can comprehend Watergate, or a New York governor getting caught with a hooker, but they're never really sure that what was done in foreign affairs wasn't necessary to make sure that we aren't all killed in our beds by the evildoers. That's just the way it is.

I would love nothing more than this investigation, but it sucks oxygen from more important things.

There is nothing more important than establishing unequivocally the accountability of the executive to the law, without which the continued slow slide of the US from a representative democracy governed by the rule of law into an executive dictatorship will continue as a long-term trend regardless of which party happens to hold which office at any given time.

The longer we put this off, the harder its going to be to deal with. It would have been better if we'd addressed this with Nixon, but the Ford pardon, which rather than healing the nation simply protected executive autocracy, blocked that.

Archibald Cox was not non-partisan. He served as solicitor general during the Kennedy and Johnson administrations, and was an adviser and speechwriter for Kennedy when JFK was in the Senate.

This is not to say Cox wasn't the right man for the job; but to say he wasn't every bit a partisan is ridiculous.

If this prediction bears fruit. Obama emboldens the enemy.

Al Queda couldn't be happier if war criminals and
would be dictators thrive in our country and we truly become the morality cesspool they claim we are.

I'd really hoped to ditch my moniker to "capableofoutrage" or something to signal a new day dawning, but I'm in a holding pattern for now.

How about just ensuring safe passage to the Hague. Let the World judge them, if that is seen as partisan, then so be it, just so long as it's not seen as Obama partisan.

I have a feeling that once Bush leaves, the world is going to go after him/them. We should cooperate fully, but keep Obama as detached as possible, maybe even let some republicans handle that business.

We were supposed to be a nation of laws, not men (and women). When did that change?

Goose said

I'm with the rule of law camp. I'm a lawyer, I teach Constitutional law part time, and I see no reason why political considerations should enter into a decision on whether to prosecute persons involved in kidnapping, torture, and murder.

It strongly appears that the Bushies at some point decided that if they overwhelm us all with so many cases to consider that we will all just say, "Screw it, it will take too much time to go after all of them, so let's not go after any of them." Yeah, that is what judges said about the Mob - "Hey! Let 'em off! I don't have time to handle all those cases. So what if 4200 guys are dead? It was only politics! And prosecuting them would just be MORE politics! And who needs THAT?"

...I massively disagree with TCinLA about Ford pardoning Nixon. CONGRESS should have also gone ahead with Nixon's impeachment, in order to SEND A MESSAGE and deny him any possible future part in government - but to also bring out the true criminality of Nixon. As it affects the present, TCinLA belittles the overwhelming case that can be made against Bush and Cheney that they authorized crimes FAR beyond what Nixon did. Dammit! Nixon was GOING TO BE successfully impeached! And yet he was a piker compared to these gangsters.

If TCinLA has his way, no President would EVER get into the docket, no matter HOW criminal his actions might have been. Truth and reconciliation commissions - boy! Doesn't every defendant in every criminal case wish THEY could have such a harsh slap on the wrist - before they retire off to Gstaadt or Aspen!

. . .

Sorry. Hilzoy, but a Truth & Reconciliation Commission won't cut it simply because if such a commission were able to ferret out the truth of these charges, their findings could be used in the Hague or in other nation's courts. I frankly don't see how such a commission could legally promise no prosecution in the US since only the Judicial Branch has that power, or the President through his power of pardon. Thus no one who is culpable will cooperate. Under these conditions, no one can legally be forced to give up their Fifth Amendment rights, either.

And I think it is time for all of us to get off Nancy Pelosi's ass. No matter how you look at it, a failed impeachment would be worse than no attempt at impeachment. With a 49-49-2 split in the Senate, there was just no way Impeachment would have gained 67 votes in the Senate, even if all 100 of them had actually watched Bush & Cheney breaking the law. Our political divide is that deep. Give her credit for recognizing reality, for Pete's sake (whoever Pete is).

I really, really want to see these crooks do serious time. But it's time for me to be a grownup & leave those decisions in the hands of the President most of us just elected.

Late to the party, but wouldn't it be interesting if Obama could get McCain to head a commission looking into this stuff.

This is a big mistake. It is enormously important that we establish the principle that members of the government cannot break the law with impunity,...
Except on lib favored issues, such as illegal infiltration, because anchor voters (grown up anchor babies) vote Democratic.