The Obama administration will not focus on prosecuting government officials who practiced illegal torture or war crimes, the president-elect said on Sunday, though he added that prosecutions and independent commission have not been completely ruled out. This was Obama's first major statement on the issue since April; over the past few weeks, Obama's aides have repeatedly ducked questions about what, if anything, the administration will do to enforce laws violated by officials under President Bush. The question topped the list of citizen concerns on Change.gov last week, out of over 70,000 submissions, but Obama aide Robert Gibbs refused to respond, leading ABC's George Stephanopoulos to press the question during an interview on his Sunday show.
"My orientation's going to be to move forward," Obama said. The attorney general has to stay above politics and "uphold the Constitution," Obama added, but his administration will focus on "getting things right in the future as opposed to looking at what we got wrong in the past."
This answer tracks the language of many torture apologists (and advocates) in Washington, who posit a choice between protecting the country today and second-guessing the past.
Enforcing laws and prosecuting criminal defendants, however, is inherently about "the past." Prosecutors always work on "past" crimes; there aren't many "forward-looking" prosecutors outside of Minority Report. If the Justice Department declines to enforce recent war crimes, it will not be freed up to go prevent future terrorist attacks. It will simply enforce other laws based on recent violations.
No one argues against prosecuting Bernie Madoff so that the Justice Department can focus on fixing the economy, going forward. In fact, faithfully and uniformly enforcing the law is crucial to "getting things right in the future." Any deterrence produced via criminal sanction is undermined when future, potential offenders see that a law is not actually enforced. People are more likely to follow the law when they see that breaking it carries consequences. This is such a basic foundation of our criminal system, justified by the elemental rationales of deterrence and retribution, it is quite hard to imagine that so many seasoned attorneys and Washington journalists honestly believe that the best way "forward" is to undermine deterrence and the rule of law.
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Notes: HuffPo's Sam Stein cast Obama's answer as leaving "the door open to investigating Bush"; Activist Bob Fertik, whom I worked with to organize support for the torture question, responds here; and I recently debated this issue, in contrast to the support for prosecuting Gov. Blagojevich, with former Bush and Cheney aide Ron Christie, below:
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Obama Leaves Door Open To Investigating Bush, But Wants To "Look Forward"
Responding to the most popular inquiry on the "Open for Questions" feature of his website, Barack Obama said on Sunday that he is "evaluating" whether...
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Memo to Obama: Moving Forward Doesn't Mean You Can't Also Look Back
Will Obama's promise to protect and defend the Constitution include an investigation into the assaults on it perpetrated by members of the Bush administration?
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Change.Gov's First Big Failure
It is striking that Obama's aides, who helped win the election by harnessing new media, believed they could just spin away from their online interlocutors. The move backfired immediately.
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Maybe, Going Forward, We Should Just Let Bernie Madoff Off?
I understand it's smart for Obama to hold his cards close on torture and war crimes prosecutions, but the reason that's being given for not pursuing them makes little sense.
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Two Questions
Two questions we should demand Congress ask of Eric Holder before confirming him. The same two questions Mukasey refused to answer.
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Another Good Reason for Not Prosecuting the "Bushies"
There is almost no possibility that prosecutions against members of the Bush administration for violating civil liberties and human rights could succeed. A fairly selected jury would almost certainly acquit.
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Holder Can't Prosecute Bush Abuses Too Many Democrats Aided and Abetted Them
Holder is seemingly willing to let bygones be bygones when it comes to prosecuting Bush's crew because it would pry open the Democrats dirty but hardly unknown secret.
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The President who brought the law to the Wild Bunch of American politics would be quite a notch in Obama's belt. Nothing would say "Accountability" like that.
Many memebers of Congress knew what type of interrogation techniques were being used. And said nothing.
That's why there won't be any prosecutions.
Many members of Congress knew what type of interrogation techniques were being used. And said nothing.
That's why there won't be any prosecutions."
Are you kidding me? The WH held Republican-only briefings about all this, and a lot of Democrats found out about this stuff only when they read the newspapers. It was all part of Bushie's contempt for the House and Senate, and for Democrats: "While in theory they're entitled to be told, we simply won't tell 'em jack."
The far left will not be happy this week.
"getting things right in the future as opposed to looking at what we got wrong in the past."
If we do NOT “look back”, and if we ignore the past:
WE WILL REPEAT IT.
The Obama argument is exactly the same as that used by Bush and his minions. Forget the past, nothing to see/learn from that. Move along. And remember in the words of the current Attorney General “not every violation of the law is a crime.” Therefore, not every crime is a violation of the law.
And if the law WAS broken, and it happened in the past, well that’s history, yesterday, old news so forget about it because Bush and Obama already have.