This story, indicating that the Obama administration is bailing on the idea even investigating whether criminal charges ought to be brought against Bush administration officials who committed war crimes such as torture, is very discouraging.
From the standpoint of both the demands of justice and the politically intelligent thing to do, giving off signals that criminals in the Bush administration will simply be let off the hook is a terrible idea. Of course any investigation or prosecution runs the risk of targeting lower level people who really were just following orders, while letting the big fish off the hook — which is all the more reason that Obama should be making it clear to Bush that if he wants his top cronies to be in the clear, legally, he’s going to have to pardon them (it’s slightly unclear constitutionally speaking if Bush can pardon himself, although I have to admit that would be a fitting capstone to the man’s career).
I went to a talk yesterday by a Tanzanian legal official about the great efforts that are being made in Africa to set up a genuine system of international justice for the continent’s war criminals. One thing he spoke of was the great suspicion throughout Africa and the third world that the concept of a war crime is something that applies only to the leaders of weaker nations, and in particular will never apply to the government of the United States.
It would be to say the least unfortunate if one of Obama’s first acts is to confirm those suspicions.