The op-ed page at the New York Times is pretty bad, what with Dowd, Kristol and Friedman, but the op-ed page at the Washington Post is worse. To end the year on a negative note, here's Ruth Marcus on why an Obama administration should not pursue criminal charges against Bush administration officials who broke the law. The whole thing amounts to a classic ignoratio elenchi–none of Marcus's arguments prove or really even support the conclusion that criminal prosecution against Bush administration officials should not be pursued. My comements in brackets.
First, criminal prosecution isn't the only or necessarily the most effective mechanism for deterrence. To the extent that they weigh the potential penalties for their actions, government officials worry as much about dealing with career-ruining internal investigations or being hauled before congressional committees. Criminal prosecution and conviction requires such a high level of proof of conscious wrongdoing that the likelihood of those other punishments is much greater. [deterrence isn't the only point of criminal prosecution].
Second, the looming threat of criminal sanctions did not do much to deter the actions of Bush administration officials. "The Terror Presidency," former Justice Department official Jack Goldsmith's account of the legal battles within the administration over torture and wiretapping, is replete with accounts of how officials proceeded despite their omnipresent concerns about legal jeopardy.
"In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls," Goldsmith writes. [Goldsmith's characterization only underscores the dubious legality of the actions of administration officials]
Third, punishment is not the only way to prevent wrongdoing. If someone is caught breaking into your house, by all means, press charges. But you might also want to consider installing an alarm system or buying stronger locks. Responsible congressional oversight, an essential tool for checking executive branch excesses, was lacking for much of the Bush administration. [This is the same as one. It's also just irrelevant.]
Fourth, there is a cost to pursuing criminal charges. As appalling as waterboarding is, for example, it was pursued with the analysis and approval of lawyers who concluded, however wrongly, that it did not rise to the level of torture. If government officials cannot safely rely on legal advice, they will err on the side of excessive timidity. [All criminal defendants can find lawyers who can argue however erroneously that they're client did nothing illegal–this does not make it legal]
Fifth, focusing governmental energy on uncovering and punishing the actions of the past will inevitably drain energy and political capital from the new administration. It would be a better use of the administration's time to figure out how to close Guantanamo and deal with the remaining prisoners. [these are not mutually exclusive]
In a State of the Union address in 2003, Bush uttered the following words about Saddam:
The dictator who is assembling the world's most dangerous weapons has already used them on whole villages — leaving thousands of his own citizens dead, blind, or disfigured. Iraqi refugees tell us how forced confessions are obtained — by torturing children while their parents are made to watch. International human rights groups have catalogued other methods used in the torture chambers of Iraq: electric shock, burning with hot irons, dripping acid on the skin, mutilation with electric drills, cutting out tongues, and rape. If this is not evil, then evil has no meaning. (Applause.)
Saddam's leaving thousands of Iraqis dead and obtaining false confessions through torture were lawlessness on a scale worthy of military invasion at the cost of thousands of lives of killed and wounded soldiers and civilians. One would think that such things might be worthy of criminal investigation, and, perhaps, prosecution.