Many Washington Republicans and Democrats agree on one maxim for President-elect Barack Obama: This is no time to look back at the past administration's rocky record on executive power and the rule of law.
Republicans caution against protracted, "partisan" investigations. Democrats urge Obama to tackle pressing economic and foreign policy challenges -- if that leaves an unusually powerful executive branch in place, so be it. Both camps are wrong.
Obama must scrutinize and disassemble the post-Sept. 11 imperial presidency, even if he reduces his own power in the process.
The Bush administration opened several lines of attack against the rule of law and the integrity of an independent Justice Department. The scandals are so famous that they've been reduced to shorthand: Abu Ghraib, Guantanamo, NSA, Attorneygate.
No matter what, these incidents will remain a blot on our nation's history. But we can achieve a measure of closure and justice by pursuing legal accountability for anyone involved who broke the law. The initiation of proper legal proceedings -- both investigations and prosecutions -- simply cannot depend on whether the accused are powerful.
The bipartisan immunity lobby, however, insists that route could divide the country. The image of government officials going to jail, they say, is simply unthinkable.
It is a remarkably unserious argument -- as if our laws and Constitution are a distant second to the imagined trauma of watching politicos go to jail like any other lawbreaker. It is especially odd now, coming after several politicians have been prosecuted, defeated and imprisoned on corruption charges.
The immunity crowd has one more card to play. Crimes committed on behalf of national security, they say, are different. On closer inspection, that claim also dissolves into an elitist pitch for the powerful.
The fact is that there are U.S. soldiers sitting in jail right now for what happened at Abu Ghraib.
The question is not whether to prosecute those crimes; that process has already begun. The question is whether the Bush administration correctly prosecuted the people actually responsible for the conduct -- or whether the entire episode was blamed on those low on the chain of command.
Likewise, the politicization of the Justice Department is already a live issue in court. Former Attorney General Alberto Gonzales is currently fighting a civil suit alleging that he politicized the Justice Department. In fact, taxpayers are even footing the bill for his private lawyers. (Up to $24,000 a month, under an arrangement with the Bush administration.)
The new administration, however, cannot afford to sit on the sidelines as private parties fight over Gonzales' sins. There is an overwhelming public interest in accountability for and a complete investigation into the U.S. attorney firings, including, potentially, criminal penalties for any senior officials who broke the law.
As Sen. Arlen Specter, the top Republican on the Judiciary Committee, recently explained, Bush officials undermined the "credibility and effectiveness of the Justice Department" by politicizing their roles. Regardless of who won this election, any new inhabitant of the Justice Department would have to rebuild that credibility. It starts at home. After all, why should citizens have faith in the department's new leaders if their first act is to join in the whitewashing abuse by their predecessors?
The New York Times recently captured this problem: "Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor's tenure."
This is one time, however, that the new president cannot afford to look like every other self-serving chief executive. Obama can show that America's promise of equality not only means that anyone can reach the highest office in the land -- it also means that everyone is equally subject to the law.
Experts and leaders in both parties herald the work of the 9/11 Commission, which bored down into a period many would rather not relive. Now what we need is a Response to 9/11 Commission -- a subpoena-powered investigation of the torture, rendition, detention and spying that was presented as an essential response to terrorism. Obama should also assign a special prosecutor to explore the related crimes and take necessary action, independent of the new attorney general's agenda.
Once the legal process is complete, of course, the president retains the right to commute or pardon convicted criminals. In some cases, there may be good reason to do so. But under the rule of law, there is never a reason to immunize government officials in advance, removing the most critical check on the power they wield in our name. The past eight years reveal the grave costs of that approach, and it is past time for a change.