Another advantage of this approach, would be the possibility of a classified version, which would help preserve the truth for posterity, and identify and thwart the Bush Administration's efforts.

Some with ties to the intelligence community fear the demoralizing impact on intelligence officers

I don't know why it would demoralize those who didn't participate. And I'm guessing that many who did, weren't advocates to begin with. But if there is ever another administration like Bush's, they need to know where the line is. I would be very surprised if this turns out to be another Abu Ghraib situation where all blame is directed downward.

What is the key difference between (a) indictment and prosecution, based on evidence, of members of the Executive branch for illegal eavesdropping on US citizens and the illegal use of torture and (b) indictment and prosecution, based on evidence, of a Congressman for accepting bribes? I'm sure I must be overlooking a critical factor raises such widespread solicitude in the former case.

Correction: "... factor that raises ..."

What is the key difference? Jassalasca

Uh, maybe the Exec branch conviction wouldn't result in a standing ovation?

My dict. says solicitude means tender care. Am I missing something?

Eric Holder, slated to be nominated as attorney general, sharply criticized the use of torture and the legal rulings that permitted them. Holder called some Bush counterterror policies "excessive and unlawful."- Newsweek

Let's not forget that the policies were also wasteful and counterproductive, causing intelligence agents to spend ten of thousands of man-hours tracking down false information that was given by guys who were just trying to get the torture to stop. An important mission for whatever panel that investigates torture by the Bush administration should be to demonstrate that torture doesn't work as an effective intelligence-gathering method.

We probably will need 9-11 style commissions for every Bush Administration agency and department to document abuses and to restore fact-based (as opposed to ideology-based) decision making.

I reluctantly must agree with the notion that Obama must avoid the appearance of a partisan witch hunt and avoid domestic prosecution of war criminals in the Bush administration.

Such prosecutions will be a bloody shirt that can be used to rally Conservatives and Republicans. For the sake of the country, Conservatives and Republicans must be kept in confusion and disarray.

I am consoled by the fact that no member of the Bush administration will ever be able to leave the country again for fear they will be arrested and dragged before the International Court at The Hague and tried for war crimes. Even if Bush pardons his buddies, they will, for practical purposes, live the rest of their lives under a form of house arrest.

Why would any serious investigation of Bush administration wrongdoing "destroy any hope of bipartisanship"? Is that the deal here? Forgive us all our crimes, or you can forget about that new overpass in Tampa?

I certainly hope not, because the official line all along was that no wrongdoing took place; that it was all perfectly legal. What's wrong with testing that theory? I mean, Bush has been known to "misspeak" in the past.

There is also no requirement to sell it like it's an initiative that originates with the Obama administration. Say the American people demand it; that they clamored for it during this administration, but were stonewalled. It shouldn't be difficult to sell the truth.

If Obama signals that he is willing to let this slide, he will become complicit in it and tainted by it. He's an unusually smart man - I'm confident he will figure out a way to do it that suggests there is no alternative. There are enough people in the government that such an inquiry need not exclude all else for an entire first term, or even the first year. The Bushies were not particularly careful about covering all their tracks, because KKKarl told them they would be in power for a generation.

"Some with ties to the intelligence community fear the demoralizing impact on intelligence officers"

Individuals who participated in or condoned the use of torture lost their morals (and their "legals") some time ago.

Danp,
The question was rhetorical. I believe that we share the view that drawing the line on torture is important.

My dict. says solicitude means tender care. Am I missing something?

We share the same dictionary as well. There is a notion making the rounds to the effect that prosecutions are undesireable because they might create political friction. Avoidance of friction is a form of solicitude, or, if you prefer, tender care. To be perfectly clear (and, with apologies, a bit tiresome) my personal feeling is that forebearance on those grounds would be a bad thing.

We do agree, and thanks for the explanation.

And while he's at it, how about a commission to investigate 9/11 only for real this time. No one with any gray matter believes either the official 9/11 version of events or the laughable Warren Commission report from 40 years ago.

Obama seems interested in treating Americans like adults, and we cant ake it. My fear, however, is if he tried to get to the bottom of 9/11 he wouldn't last very long.

And by all means, he should put go-to whitewash reliable Lee Hamilton in charge of it.

The first thing to do is to avoid going off all "half-cocked" and fling a bunch of gereric allegations against anyone---that would define the Obama administration as "revenge-ist" and give the GOP the foundation for their own "perfect storm." So a formal commission should be the first step.

Once the commission finishes, any factual evidence can be present, not to the Obama administration, but directly to the International Court, where the actual authority for prosecuting such crimes would exist.

And---while we're on the topic---any and all crimes committed, whether related to the Iraq Expedition or the greater GWOT, are all going to be explicitly connected to that one little word---WAR---which automatically brings with it not only the connotation of crimes against humanity, but war crimes. Such are not tried by a domestic court, but must be brought under the protocols of the Geneva Conventions. Under those protocols, the investigations do not formally begin until after the cessation of hostilities, unless there are extenuating circumstances (one such circumstance being that the government committing the atrocities is no longer in power).

The telling-point will be whether or not the Obama administration would cooperate with any international efforts to extradite former Bushylvanians to the Hague, once the facts become available to that judicial institution.

Seeing Bush and his drama-queen band of fools marched up the loading ramp of a military transport, destined for Holland, is a thing I do so wish to see. It'll just take a wee bit of time---may a year or two; perhaps three, even---but it will happen, nonetheless....

We are a society of weenies. Solicitude for torturers?

Did the Church Commission demoralize anyone? Did we care?

These concerns for "bipartisanship" and "demoralization" are sickening. If intelligence personnel engaged in torture they have no business being intelligence personnel in the service of the United States. "I was just following orders" didn't cut it at Nuremberg, and it won't cut it here. And as for those who ordered the torture, they are war criminals, period. I don't give a damn how far up it goes, they need to be prosecuted or the law is meaningless. I don't have much "hope" that Obama will actually pursue this because of the endless political calculations that will likely drive his presidency.

I'm hoping that the conciliatory talk is intended to lull bush into not issuing mass blanket pardons. Can't prosecute the shits if they're holding get out of jail free cards.

"If there was any effort to have war-crimes prosecutions of the Bush administration, you'd instantly destroy whatever hopes you have of bipartisanship," said Robert Litt, a former Justice criminal division chief during the Clinton administration.

The whole point of the International Criminal Court, to which 108 nations have committed themselves, is that it is there for when a nation finds that it cannot itself prosecute individuals accused of genocide, crimes against humanity, and war crimes. The court can prosecute as an independent recogised body.

It would be rather appropriate for Bushco to be hounded more than Pinochet: as soon as they set foot in any of the 108 (hopefully soon to be 109), like Canada, the UK, Australia, Mexico, Brazil, etc they be summonsed and charged. Rendered, perhaps, for processing.

Much of this investigation has already been done and is compellingly presented in The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals by Jane Mayer

Steve, you're right to see how this choice -- go after the lawbreakers or pass valuable legislation -- would play out in exactly in those either/or terms.

I think the smart course for the Obama administration may be to hold its fire on prosecutions for now, focus on implementing its progressive agenda and try to tackle the investigations later on while letting public support for a crackdown build through nongovernmental channels.

This risks losing momentum on administering due justice. But if enough tell-all books and netroots/journalistic groundwork can keep that topic alive, the Democrats, having built public confidence in their party, might be able to get the wheels turning on such probes just in time for them to shadow the 2010 or 2012 campaign. If that happens, the GOP might come begging for investigations and prosecutions to conclude earlier.

Administration and Congressional prejudice have made it imperative that the U.S. recuse itself from the adjudication and disposition of so-called "enemy combatants" who have been illegally remanded into custody, tortured and held without charge since 2003. A 9/11-style Commission would be an outrageous hoax!

Remand to The Hague, to the International Court, for all of the Administration's hostages may begin to provide a respectable foundation for the prosecution of BushCheneyRumsfeld (and all of their lawyers) who subverted international laws and Congressionally-approved treaties that have been specifically prescribed against the torture and genocide that BushCheney has committed.

last week i read the report by the human rights center of the university of california which contained the quote by judge wald which was up all over the place.

i wrote a post summarizing the report, its conclusions and what the commission it recommends would do.

some might find it useful to read. clicking on my name will take you straight to that post.

the url didn't work. here's the link:

http://fromlaurelstreet.wordpress.com/2008/11/17/you-wouldnt-do-this-to-a-dog/

This idea is b.s. If righting an enormous wrong is going to be controlled by political considerations and in the "spirit of bi-partisanship," then screw it. We need justice to be done, period. I won't make any excuses for an Obama administration if they fail to pursue this justice. We've had years of people defending the Bush administration on these issues, and if we start defending the new administration if they choose not to pursue it, that's equally as WRONG.

I think a commission investigating and publicizing the lies that led us into the Iraq invasion would be more important.

It won't get done, not by US politicians, because too many of them supported the war. But the most important lesson that could be learned is that governments lie when they make claims against other countries. You shouldn't believe them. Exposing the ridiculous performance of our "fourth estate", our "watchdog of Democracy" would be another benefit.

Because the neo-cons in our government and press WILL try to drum up another war, and a little more skepticism from prominent places, along with less marginalization of the already skeptical (like last time) would be a benefit to humanity.

I think a key phrase here is "absent specific new evidence of wrongdoing", since there are many, many officials that have told reporters that they have a lot to say after Bush is out of office.

I suspect the Obama administration will investigate Bush's torture policies and other illegal, immoral, corrupt and unconstitutional activities under law-enforcement procedures derived under RICO (the Racketeer Influenced and Corrupt Organizations Act).

That is, Obama will "quietly" investigate the Bush administration from the bottom up -- first get the underlings to spill the beans and keep working up the ladder. The Obama administration gradually will publicize the investigation results each step of the way until the American public "gets it". This will prevent any charges of a witch hunt.

BTW: That's also how Watergate (and Nixon's resignation) occurred...one deliberate step at a time.

A syllogism, if you will:

The US is a signatory to the UN Convention Against Torture;
Under US law, treaties to which the US is a signatory are the law of the land;
Therefore anyone in violation of the UN Convention Against Torture is a criminal under US law and must, by obligation, be criminally prosecuted. The rule of law demands it.

-Z

If it is not investigated by the Obama administration they will be seen as condoning this behavior by the rest of the world. If investigated but not prosecuted, it leaves perhaps a significant number of the current administration vulnerable to prosecution by the international community. Maybe Cheney, Addison, Yoo et al. should take that European vacation sooner rather than later.

I really cannot see how the new administration avoids at least a thorough investigation.

This whole concept is the subject of the feature article in the December 2008 Harpers Magazine.

Justice after Bush: Prosecuting an outlaw administration, By Scott Horton

Interesting -- He more or less draws the conclusion that a truth and reconciliation commission is essentially the only way we'll get anything done in our political system.

There is another remedy available--one which is unaffected by any pardon. President Bush, Vice-president Cheney and other officials are subject to impeachment even after leaving office.

Paragraph 7 of Article I, § 3 of the Constitution states:

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

This is not a mere academic question. After serving as president, John Quincy Adams served in the House of Representatives and William Howard Taft served as Chief Justice of the United States. After serving as vice-president, Richard Nixon and George H. W. Bush served as president and Hubert Humphrey served as a U. S. Senator. Walter Mondale served as Ambassador to Japan and was nominated to run for the Senate from Minnesota when Senator Paul Wellstone died in a plane crash.

Here's hoping that the next Congress will pursue articles of impeachment as to whether President Bush has taken care that the laws be faithfully executed as to torture, electronic surveillance and any other areas the Conress may deem appropriate.

Funny how commissions always seem to sweep US political involvement under the rug. From the Warren commission to the 9/11 commission it spreads the guilt and the blame through time and compounded confusion till it makes the investigation of the issue, pointless. I knew this would happen...it should be a witch hunt because there are witches out there who are guilty as hell but as usual it "will detract form policy making", so we must just move forward and let the nation heal. Just pathetic and predictable.

No accountability or consequences for executive corruption and lawbreaking even when it involves murder and torture. Now I see why I have no respect or trust for our government...complicity on a major scale. But hey, at least we got recognition for a "new" minimum wage.

And---while we're on the topic---any and all crimes committed, whether related to the Iraq Expedition or the greater GWOT, are all going to be explicitly connected to that one little word---WAR---which automatically brings with it not only the connotation of crimes against humanity, but war crimes. Such are not tried by a domestic court, but must be brought under the protocols of the Geneva Conventions. Under those protocols, the investigations do not formally begin until after the cessation of hostilities, unless there are extenuating circumstances (one such circumstance being that the government committing the atrocities is no longer in power).

No, that is incorrect. War crimes can certainly be tried by domestic courts (whether military or civilians) while the war is still ongoing -- remember that over the past several years current and ex-members of the military have been tried for Iraq and Afghanistan related war crimes such as rape, murder and kidnapping.