If you haven't heard already, President Barack Obama went remarkably out of his way Tuesday to keep alive the possibility of the potential prosecution of former Bush officials for formulating torture policies in the wake of 9/11. The President also implied his support for a bipartisan panel to look at the contentious issue.
This is news—very different in tone and tenor from what we heard from the Administration last week. So before the next head-turning development occurs on this topic here are ten things you ought to keep in mind as we go forward. Don't like them? Don't worry—they will probably be obsolete within the next few days.
1. Any prosecution of any former Bush officials for their role in formulating torture practices will be very difficult to win in court. Even some of the most ardent supporters of such a path concede as much. The law is set up to protect officials even when they come up with dubious justifications for dangerous policies. Why is this different?
2. It is entirely possible, indeed likely, that President Barack Obama's suddenly tough talk on torture prosecutions is designed to push the Congress into accepting a primary role in the creation of a bipartisan "Torture Commission". Certainly a commission would be less partisan than a series of criminal trials of former Bush Administration officials.
3. Vice President Dick Cheney is never, ever going to be prosecuted even though, technically, he may have secretly had final say on the scope of our torture policy. The former officials who ought to be calling their lawyers now (or who already have called their lawyers) are the men who actually rafted the Office of Legal Counsel memos. No more self-indulgent op-eds for you, John Yoo!
4. The creation of a Torture Commission must include a concomitant pledge by the Justice Department to immunize all potential witnesses who then would be forced to testify under penalty of contempt sanctions. A commission without immunity and subpoena power is no commission at all. What does Attorney General Eric Holder feel about such a scenario?
5. Former President George W. Bush, Cheney, Alberto Gonzales, John Ashcroft, David Addington, Jay Bybee, John Yoo, Steven Bradbury, and many others would have to cooperate with a torture commission to make it a valid and valuable exercise. There is precedent for this—private "depositions" taken in connection with the commission's investigative work. Would these men agree to this in lieu of prosecution?
6.We now all should turn our attention to the Senate Judiciary Committee, its Chairman Patrick Leahy (D-Vt.), and other Democratic senators like Russ Feingold (D.Wis), who would be likely point-people in the creation and operation of a commission. Are they talking to the White House and Justice Department about it? If not, why not?
7. Ranking Committee Member Sen. Arlen Specter (R-Pa.) said last month that he supports a criminal investigation of former Bush officials (if there is a legitimate legal and factual basis for it) over their torture policy but does not support the creation of a Torture Commission. Is he forcing the White House and Justice Department into an all-or-nothing choice?
8. There is no chance that we will see the trials of any former Bush officials before we see completed terror trials of Al Qaeda leaders Khalid Sheik Mohammed and Ramzi Binalshibh, now languishing as detainees at Guantanamo Bay, Cuba. And, nearly 100 days into the Obama Administration, there doesn't appear to be any reason to think that's going to happen anytime soon. That's another reason to discount the possibility of criminal trials for Bybee and Company.
9. I have just discovered a new way for many Americans to improve their finances. Let's create a Washington-Law-Firm-Mutual Fund so that we could get a dividend for the tens of millions of dollars in D.C.-area legal fees and costs that are going to be generated and collected before this mess is resolved. How many torture-memo-drafters have already lawyered up? And what exactly did Eric Holder mean when he announced last week that the government would help defend those officials? Has that defense begun?
10. Whether President Obama was just posturing Tuesday or not, this is one of those times in American history where the best policy, the best path, seems so clear that there is reasonable cause for hope that even the politicians who lead us can choose it. Prosecuting lawyers for their torture memos has never been the right path. A blue-ribbon commission always has been. We'll see where we go from here.