No Comment — November 18, 2008, 1:12 pm

AP: Obama Will Not Prosecute War Crimes

What do journalists do when they have no news to report? They focus on speculation about what might happen. Most of the speculation in transition time focuses on candidates in the inside-the-Beltway quadrennial personnel shuffle. And this is politics as usual: rivals usually connive to plant stories about one another, attempting to get a leg up in the competition. The media routinely floats their stories attributed to unnamed sources. But the latest entry in this series is peculiar. AP reports that two unnamed Obama advisors have stated that there will be no war crimes investigations or prosecutions relating to the Bush Administration’s torture policies.

To start with, the AP piece revolves around a question that is almost insulting in the way it is presented. What president would enter office pledging not to prosecute war criminals, or pledging to prosecute figures from the former administration? Any president who did such a thing would not be worthy of holding the nation’s highest office. Prosecutions should not begin or end on a signal transmitted from the White House. The criminal justice system is supposed to be administered in a fashion that stresses detachment from politics. One of the biggest complaints about the last eight years is that the veneer of political detachment has worn very thin. One thing the voters expect of Barack Obama is that he will rebuild the wall that separates the political side of the government from the law-enforcement side.

But second, it quotes two sources inside the transition team:

Two Obama advisers said there’s little — if any — chance that the incoming president’s Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.

Now as it happens, I agree with the Obama advisors, and almost everyone who has studied the case, that the Justice Department will not bring such charges. Why? First, no one expects that those who carried out instructions from the Bush Administration to use highly coercive interrogation practices, including waterboarding, would be prosecuted. The issue is whether those who made the policies and high-level decisions would be prosecuted. And second, because the Justice Department would be hopelessly conflicted from bringing any prosecution. Justice Department memoranda were concocted, almost certainly in bad faith and after the fact, to authorize and legitimate what happened. In several cases already documented, Justice Department officials were actually in the decision-making process itself. In criminal law terms, they made themselves part of a joint criminal enterprise. We don’t know how extensive Justice’s involvement was, but the current evidence is that it was quite extensive and involved the Attorney General, the Deputy Attorney General, the head of the Office of Legal Counsel, the head of the Criminal Division, the head of the National Security Division and others. It would therefore be impossible for the Justice Department to investigate or bring the appropriate prosecutions, and the change of personnel brought by a new administration would not cure this problem. On the contrary, it would aggravate it because it would add an appearance of retaliation or prosecution motivated by policy differences.

So the AP story sets off asking the wrong question.

But then we have the question of the two anonymous sources. The Obama transition team is enormous and it is peopled, appropriately enough, with a number of figures who have direct experience in the Bush Administration’s war on terror. No problem with that–in fact, Obama would be remiss if he failed to build such experience into his team. But there are a number of names in play right now who have troubling connections to the “dark side” of the intelligence community’s war on terror and who have pressing reasons to lobby against any investigation of any sort. Why? Because their own judgment-calls might come under unpleasant scrutiny. Just some for-instances:

  • John Brennan, who regularly surfaces as a key Obama advisor on intelligence issues and is supposedly in the running for a key intelligence community post. Brennan has a completely ambiguous record on the torture issue, depending on whether he speaks from the agency, as a commentator or on behalf of President-Elect Obama.
  • Jamie Miscik, another intelligence community careerist who was very close to the WMD in Iraq imbroglio and more recently was a key player at Lehman–and now understandably needs a new roof–is another figure who would clearly rather avoid a probe of the torture issue.
  • And finally Jamie Gorelick, a former key Clinton Justice Department official who, according to intelligence community sources, took a whopping retainer from the CIA to counsel and protect the psychologists who crafted the guts of the Bush torture program. Gorelick, a Hillary Clinton partisan, is also a name in play for a senior intelligence post.

But the bottom line is that there should be no call about prosecutions until there has been an investigation. The question is really how should an investigation be conducted, and who should conduct it?

In the end any prosecution would require a special prosecutor, but who should handle the threshold inquiry into whether enough exists to appoint one? Again, the Justice Department has resources for that purpose that cannot properly be put in play. There is one clear answer, which is for President Obama to follow the example of President Ford in his dealings with allegations of intelligence community misconduct with high-level complicity that rocked the mid-seventies. He should appoint a commission to lay bare the facts, putting what the public needs to know on the record. Only then should the call about a special prosecutor be made by the attorney general. He should have the commission’s advice and findings to draw on in the process, and he should take the decision avoiding the political tug-of-war now going down and the dark interests who are driving it.

President Obama shouldn’t be focused on the fate of individual potential defendants. He should care about the nation’s reputation, our commitment to the rule of law, and a process that is worthy of our best traditions and aspirations.

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