Matt Yglesias

Above the Law?

What Krugman said:

Last Sunday President-elect Barack Obama was asked whether he would seek an investigation of possible crimes by the Bush administration. “I don’t believe that anybody is above the law,” he responded, but “we need to look forward as opposed to looking backwards.”

I’m sorry, but if we don’t have an inquest into what happened during the Bush years — and nearly everyone has taken Mr. Obama’s remarks to mean that we won’t — this means that those who hold power are indeed above the law because they don’t face any consequences if they abuse their power.

And, look, the idea of enforcing the laws inherently involves the idea of looking backwards. If John Yoo walked down Pennsylvania Avenue and shot a guy in the head, we wouldn’t say “we need to look forward as opposed to looking backwards” even though it would be as true as ever that it’s important to look forward. And more than one person has died as a result of Bush-era torture policies. The idea of an accountability-free executive is bound to have some appeal to a new administration. On the one hand, embracing it earns you plaudits for bipartisanship. On the other hand, you’re the executive now, so why not embrace it? But for the rest of us it’s not such a great deal.

UPDATE: And recall Brian Beutler’s point here that the illegality of, say, waterboarding was an established principle of American law for decades before Bush came around. We tried Japanese soldiers as war criminals for doing it during World War II. And it’s not like we took “well you have to understand, the Americans were a serious security threat” to be a viable defense.

What to do With War Criminals

One issue that the incoming administration has on its plate is what to do with the various war criminals now kicking around as a result of the Bush-Cheney torture and detention policies. On the merits, I’d like to see forgiveness for implementers who were following what they were (falsely) assured were lawful orders and harsh measures for people on the policy level. In practice, it’s pretty clear that Don Rumsfeld isn’t going to wind up in jail. Michael Isikoff reports on the Obama campaign’s thinking:

Despite the hopes of many human-rights advocates, the new Obama Justice Department is not likely to launch major new criminal probes of harsh interrogations and other alleged abuses by the Bush administration. But one idea that has currency among some top Obama advisers is setting up a 9/11-style commission that would investigate counterterrorism policies and make public as many details as possible.

….”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. A new commission, on the other hand, could emulate the bipartisan tone set by Tom Kean and Lee Hamilton in investigating the 9/11 attacks.

I think the model being reached for here is something like the South African Truth and Reconciliation Commission. But as Kevin Drum says, on this plan “we’ll get the truth, but not the reconciliation, since I doubt that any of the perpetrators of this stuff are inclined to show the slightest remorse for what they did. I suppose that here in the real world this might be the most we can expect, but I don’t have to like it. And I don’t.”

I’m half inclined to say there should be neither truth nor reconciliation. Instead, George W. Bush should be kidnapped, drugged, flown to Spain in an unmarked plane, and wake up on the streets of Madrid tied up with a bunch of files and evidence pinned to his chest so Judge Garzón can sort the whole thing out. If anyone asks how that happened, deny knowledge and mention “executive privilege.” I dunno.

On a more serious note, I think it’s important to draw a distinction between simply declining to engage in war crimes prosecutions as a matter of prosecutorial discretion, and actually taking prosecution off the table. The latter should be done, if at all, only in exchange for confessions, expressions of remorse, and cooperation with investigations. The former may is probably the better part of wisdom for now, but many of the perpetrators can be expected to live for decades and absent something like a real Truth and Reconciliation Commission the door should be left open to doing something down the road if circumstances change. I don’t think it’s even remotely acceptable to just give a full retrospective stamp of approval on everything that was done during the Bush years merely because that might be the most convenient way to build legislative support for Obama’s domestic agenda.