In the current issue of Commonweal, I look at the web of legal opinions, administrative statements, and permission engendered by the Bush Administration. These legal but probably unconstitutional scraps cover a range of issues, most notably the detention and interrogation of terrorists and illegal combatants, but also warrantless wiretapping, etc. Members of the Obama administration, probably in the Department of Justice, will have to spend some time ferreting these out and revising their legal status, lest these practices continue.The larger question of criminal prosecution for war crimes by administration leaders, notable Cheney, Addington, and Bush, looks to be a non-starter for various reasons, good and bad. There is a growing discussion about how to pursue justice and to make public the contents of many of these classified documents.Scott Horton, who has long followed the Guantanmo issues, believes that a congressionally appointed bipartisan commission should be established to throw light on these opinions and the practices they permitted, but does not see war crimes charges comingunless one of the principals is arrested overseas.http://www.harpers.org/archive/2008/12/0082303 (subs required)Charles Homans argues that rather than an independent commission, current congressional investigations should be allowed to run their course, perhaps having the salutary effect of showing how implicated some in Congress may prove to be.
Jack Goldsmith, who headed the Office of Legal Counsel, became a severe critic of the Yoo-Bebee memos permitting enhanced interrogation. (He also prevented Andy Card and Alberto Gonzalez from getting the bed-ridden AG John Ashcroft to sign off on more of the sameso a good guy in the Bush Administration, if there is one.) He argues in this op-ed piece that the CIA and DOJ, which are likely to be the center of these investigations, will be demoralized and undermined by any thorough-going investigation. He seem to think we should let the whole thing go away.
What about war crimes trials? What about declassifying and airing the arguments in favor of torture and indefinite imprisonment? What about repentance and reconciliation commissions? What are the unforeseen consequences of just letting this shameful chapter fade away? Views?