Should Obama Investigate the Bush Regime?

So, on Olbermann and other places, the debate has been raging over whether Obama should investigate Bush, Cheney, and the Bush regime for war crimes, or whether it is better not to start an investigation that will likely become a bitter partisan struggle that will end up distracting the new administration from implementing its agenda, especially in these difficult and challenging times. On the one hand, how can we let those who authorized abuse and torture go free? On the other, what's past is past, and shouldn't we move on and focus on the present rather than digging up the past?

I've heard some variation of the second argument, that we need to focus on moving forward and facing the challenges ahead of us instead of looking backward, from a number of sources, including Obama himself. This argument, if I may be so bold, is bullshit. If going back to look at the past to see if crimes have been committed is to waste resources and effort that could be used to go forward, then we should fire every judge and district attorney in the nation, we should close down the Justice Department, FBI, and every police department, and use all the money elsewhere. As a lawyer (don't know her name) said on Olbermann the other night, that line of argument sure as hell wouldn't work in court for someone accused of bank robbery. Why in the hell would it work for someone accused of war crimes?

Unless the point here is you can get away with anything as long as your crime is big enough, sensational enough, rare enough, and you are important enough, that to try you for your crimes would create a big sensation or be too much trouble that no one wants to bother. But that's a different argument, isn't it? It's the real argument being made, though. Just no one wants to make it explicitly, because it's not a very pretty argument. It was an ugly reason for Ford to pardon Nixon, and it wouldn't be any less ugly a reason for us to turn a blind eye to the Bush regime's crimes either. It turns the whole notion of justice on its head. The less powerful a person is, the less harmful the crime, the less important it is that he or she face justice. Conversely, the more important the person, the more harmful the crime, the more important it is that he or she face justice. The fact that it is easier to prosecute the powerless for trivial crimes than the powerful for heinous ones is not an excuse to give the powerful a pass. In the overall scheme of things, it doesn't matter that much if a given 7-11 clerk shoplifting a DVD player from Wal-Mart gets tried and punished or not. It matters a hell of a lot if a President who presided over war crimes walks away scot free or not. In terms of US standing in the world, US credibility, how effective US foreign policy will be in the future (especially in terms of US pressure on other countries on human rights issues), whether enemies in future conflicts with the US will obey the Geneva Conventions with regard to capture US soldiers or not, whether precedent is set that the President is above the law and can violate International Law at will, etc.

So, frankly, I think we have to firmly reject the argument that we shouldn't focus on the past and worry about the present and future. It undermines our whole system of justice and concept of holding people accountable for their actions, because those making the argument give us no reason why it applies now, to war crimes, but not at other times, to the bank robber or shoplifter. Absent such an argument, we are left with nothing but arbitrary special pleading that this particular set of crimes committed at this particular time is in the past and should be left there, but that crime committed at that particular time should be investigated and prosecuted.

So, then, what about the argument that the new administration can't afford a bitter partisan struggle that will hinder efforts to deal with all the problems facing the nation? This argument has some merit to it, but in the end, I think it's really just faintness of heart and failure to accurately assess the benefits of war crimes investigations and prosecutions in both political and non-political terms. I think it is the same mistake Nancy Pelosi made in refusing (and ruling out a priori) to impeach either Bush or Cheney. Yes, undertaking war crimes investigations and prosecutions is a huge gamble that will take a great deal of political capital and involves a great deal of risk. Certainly there will be charges of a partisan witch hunt leveled at Obama and his administration and it may become more difficult to cooperate with and work on a bipartisan basis with Republicans during the investigation and any subsequent trials. Thought not as much difficulty as one might think, given Obama's popularity and the fact that a lot of the more ardent supporters of torture are gone from Congress now, and a lot of the remaining Republicans are those who never were comfortable with "enhanced interrogations" like McCain and Specter and who won't hesitate to work with Obama just because of ongoing war crimes prosecutions against former Bush regime officials.

Plus, I think that the popularity of "enhanced interrogation" techniques has plummeted outside of the extreme right and FOX News pundits, and I think Obama could really make it difficult for the Republicans to oppose his policies in retaliation for war crimes investigations and trials by using his great talents as a communicator to make clear to the American people that war crimes trials are one thing that truly are beyond politics, unlike all the other things that this claim gets made about.

But look at what the nation gains for the risk Obama takes: a break with and an utter repudiation of the foreign policy of the Bush regime that even Obama's own election cannot completely make, including Abu Ghraib, extraordinary rendition, Gitmo, the invasion of Iraq, the "axis of evil" speech, US failure to respect the Geneva Conventions and International Law, the whole "enemy combatants" farce, and disrespecting habeus. Bush's foreign policy would become an aberration, his acts once and for all judged illegal and thus unrepeatable, a corrupt regime acting outside its authority and thus illegitimate. Without investigations and trials, the US can say what it wants and Obama can do everything else in his power to mitigate and repudiate Bush's policies, but everything Bush did will remain legitimate acts of the US government that are only a change in the direction of the political wind away from happening again.

But by forever rejecting the Bush legacy the US can regain its moral standing, it can prove to the rest of the world that it holds itself and its own leaders to as high a standard as it holds other nations, that it corrects its own mistakes, and that no President, past or future, is above the law to act as he or she will without consequence. The leverage the US will gain to accomplish its foreign policy goals and the prestige the US will gain by actually living up to its ideals and rhetoric will be of great enough benefit to the nation and the Obama administration that, on balance, they are worth the political risk of initiating war crimes trials and investigations.

And that's not factoring in the simple moral imperative that it is immoral and wrong to let the people who abused our collective power, trust, and goodwill to do the things the Bush regime did in our name go unpunished. Bush once again insisted in his farewell speech that, though it "makes some uncomfortable" when he talks about it, that there is good and evil in the world. While Bush himself may not be an evil man, he presided over an evil regime and it is up to the rest of us, as Americans, to show the rest of the world that we do not take kindly to evil done in our name.

So, in the end, while I am sympathetic to the argument that going after Bush and his regime for war crimes won't help us deal with our current problems, I think this calculation is wrong. I think, in the end, that the US will be better off for investigating and prosecuting those who have committed such crimes, and we will find that though there may be some cost in the short-term, the benefits far outweigh those costs in the end.