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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