If President-elect Barack Obama plans to commit resources to the task of investigating Bush and Cheney, it would be putting it mildly to say he's not tipped his hand. Over the weekend, he told George Stephanopoulos: "[O]bviously we're going to be looking at past practices and I don't believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. ... My orientation is going to be moving forward." Progressives are left wondering what future there is for holding the outgoing administration to account for its Constitutional violations.
On last night's Rachel Maddow Show, Maddow took up this issue in depth, noting the successful efforts of Bob Fertik of Democrats.com and others to get this issue front-and-center on the Change.gov website. These questions are still extant. But Maddow smartly invokes Dawn Johnsen, Obama's recent appointment to lead the Office of Legal Counsel, a little-hyped appointment that deserves much greater attention. Maddow features this 2008 statement from Johnsen:
We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure.
And just to demonstrate the depth of Johnsen's commitment to the rule of law, let's pull up her reaction to John Yoo's "torture memo," from an April 3, 2008 post on Slate's "Convictions" blog, exchanging outrage with Slate's Dahlia Lithwick:
Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it--all demand our outrage.
Yes, we've seen much of it before. And yes, we are counting down the remaining months. But we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise, our own deep cynicism, about the possibility for a President and presidential lawyers to respect legal constraints, itself will threaten the rule of law--and not just for the remaining nine months of this administration, but for years and administrations to come.
So, Johnsen has got the mettle to bring the American people the remedy. Still, the question remains: will Obama unleash her? Conveniently, Maddow had Lithwick at the ready to attempt to divine the possibilities. Unfortunately, Lithwick was not asked for insight into Johnsen's appointment.
But that isn't to say that no insight was rendered. Lithwick told Maddow that the first clue as to the administration's mindset would come when and if Attorney General nominee Eric Holder gets asked "unambiguous questions" about torture at his confirmation hearing -- especially those of the sort that Michael Mukasey refused to answer. Holder's response, Lithwick says, will indicate "whether the goalposts have been moved irrevocably post-Mukasey, post-Alberto Gonzalez, or whether the goalposts will be moved back to where they used to be."
As for her own opinion, Lithwick is withering about the "legal question" of whether to prosecute: "If we were talking about a bank robbery, and the arguments against prosecuting were 'Oh well, those people are really stressed out, it was a crisis, they didn't think they were breaking the law ... let's just turn the page, you'd laugh at me."