President-Elect Barack Obama and attorney general-designate Eric Holder both have indicated in the past week that they are not anxious to investigate and prosecute possible crimes committed by members of the George W. Bush administration.
But three of our most eloquent voices on matters of justice say Obama and Holder are sending the wrong signals, particularly for an administration that purports to be about change. More importantly, they will be neglecting their duties if they let Bush & Co. get away with crimes.
Georgetown University law professor Jonathan Turley put it beautifully in an interview with Keith Olbermann on Friday night about the Holder confirmation hearings.
"Mr. Holder seems to be trying to find an exit where he won't have to apply the law to the former president," Turley said.
Turley was speaking primarily about war crimes, but his words could apply to any number of other possible misdeeds committed by members of the Bush administration. "This is one of the most transformative moments in our history," Turley said. "If we do nothing in the face of now-confirmed war crimes, they won't be Bush crimes; they'll be our crimes. . . . It becomes our shame."
Both Obama and Holder have said that no one is above the law. But they also seem to be saying that this is an inconvenient time to be looking into war crimes and other wrongdoing by the Bush administration. "War crimes are always inconvenient," Turley said. "If you say no one is above the law, you have to apply the law. . . . If you don't prosecute this president, it means some people are above the law."
Here is the complete Turley interview:
Scott Horton, Columbia University law professor and legal-affairs contributor at Harper's magazine, echoes Turley's sentiments in a piece titled "An Epitaph for the Bush Years." Comparing the Bush administration to a criminal enterprise, Horton writes:
What is the message to be carved over this massive cesspool of a failed presidency? I turn to Augustine, the early church father whose writings represent the first effort by a Christian theologian to come to grips with the duties of civil governance. "If it does not do justice," he writes in the City of God, "what is the government but a great criminal enterprise?" That fits the Bush Administration perfectly, for it shows its key failing and it serves as admonishment to the government that follows him.
Horton draws again on Augustine to drive home a critical point about the past eight years, focusing on the political prosecutions of the Bush years:
This provides one of the more spectacular demonstrations of Augustine's notion in modern American history, namely, when justice and the fidelity to law that manifests it is cast aside, political actors begin to behave increasingly like a band of thugs. That the Justice Department should emerge as the beating heart of a criminal enterprise is shocking, but that fact becomes more and more apparent with each successive disclosure.
Still more horrible are the political prosecutions brought abusing the good name of the United States. Today in the final hundred hours of the age of Bush, America has political prisoners—men like Paul Minor, Wes Teel, and John Whitfield, and for a while, Don Siegelman, locked away and silenced because they constituted a political threat to the Bush team, or simply because they held political offices that Karl Rove coveted. Rove steered these cases. Political prosecutions occurred in Alabama and Mississippi, in Michigan, and Pennsylvania; politically perverted investigations occurred in New York and elsewhere. And U.S. attorneys who failed to understand that the criminal justice process was now no more than a partisan weapon in the hands of Karl Rove quickly were dismissed.
What to do with the Bush crowd now? We should listen to Horton carefully--as should Obama and Holder:
Is it time now to "move on" and forget the Bush years? We must move on, but in so doing, our first steps start with remembrance. We must correct the mistakes and injustices of the past, and we must chart the damage which has been done. This week House Judiciary Chair John Conyers released a 486-page report entitled "Reining in the Imperial Presidency." Conyers hits just the right note:
"I understand that many feel we should just move on. They worry that addressing these actions by the Bush Administration will divert precious energy from the serious challenges facing our nation. I understand the power of that impulse. Indeed, I want to move on as well — there are so many things that I would rather work on than further review of Bush's presidency. But in my view it would not be responsible to start our journey forward without first knowing exactly where we are."
New York Times columnist Paul Krugman takes Obama to task for his statement that we need to "look forward as opposed to looking backwards."
Krugman notes that at least six important government agencies experienced major scandals over the past eight years—in most cases, scandals that were never properly investigated:
Why, then, shouldn't we have an official inquiry into abuses during the Bush years? One answer you hear is that pursuing the truth would be divisive, that it would exacerbate partisanship. But if partisanship is so terrible, shouldn't there be some penalty for the Bush administration's politicization of every aspect of government?
Alternatively, we're told that we don't have to dwell on past abuses, because we won't repeat them. But no important figure in the Bush administration, or among that administration's political allies, has expressed remorse for breaking the law. What makes anyone think that they or their political heirs won't do it all over again, given the chance?
Then Krugman cuts to the heart of what this means for Obama--and our country:
If we whitewash the abuses of the past eight years, we'll guarantee that they will happen again. Meanwhile, about Mr. Obama: while it's probably in his short-term political interests to forgive and forget, next week he's going to swear to "preserve, protect, and defend the Constitution of the United States." That's not a conditional oath to be honored only when it's convenient.
And to protect and defend the Constitution, a president must do more than obey the Constitution himself; he must hold those who violate the Constitution accountable.
So Mr. Obama should reconsider his apparent decision to let the previous administration get away with crime. Consequences aside, that's not a decision he has the right to make.