On Prosecuting Bush’s Team of Torture Lawyers

20 04 2009

From the New York Times Editorial page:

At least Mr. Obama is not following Mr. Bush’s example of showy trials for the small fry — like Lynndie England of Abu Ghraib notoriety. But he has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution.

That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.

Few, except the Obama administration itself, would quibble with what the New York Times is advocating. An official investigation followed by prosecution of those who authorized the use of torture should take place. But the question is when and by whom.

After all, President Obama has an ambitious wish list of legislative priorities inspired by the weight of several crises competing for his attention. That means that pursuing a high profile and public investigation into the abuses of person would almost certainly create a Congressional atmosphere so partisan that it would jeopardize his chances of passing a climate change bill, a health care reform bill, overhauling education No Child Left Behind, immigration reform, in addition to dealing with a likely Supreme Court vacancy even as he and his team struggle to nurse an ailing economy.

Of course, this does not preclude Congress itself from conducting its own low profile investigation while encouraging more open source reporting on the matter. Nor does it prevent certain state bar associations from disbarring the very lawyers who used legal fictions to circumvent the law.

In other words, Obama could allow others to make the case for him based on the record provided thus far over the course during the next few years. Over time pressure by certain Bush officials will mount and cause some of them to flip either because of the level of scrutiny involved, their pariah status within their respective fields, or maybe their conscience will eat at them.

That way provided there’s sufficient pressure from Congress and if the public develops an appetite for prosecuting senior Bush officials, which does not quite exist yet, the Obama administration could go in for the easy kill by appointing an independent prosecutor.

At minimum, it could set the stage for the creation of a Commission of Inquiry, as proposed by Chariman of the Senate Judicary Patrick Leahy. Certain individuals intimately involved in the torture regime could cooperate with the commission’s inquiry in exchange for some immunity.

Perhaps it would not satisfy many human rights advocates who want everyone responsible prosecuted now, but it would afford us an opportunity to learn from our mistakes.

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