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Obama May Be Required to Prosecute Bush Officials for War Crimes

The consensus seems to be growing that, despite his oft-repeated desire to “look forward rather than backward” when it comes to the Bush administration’s authorization of the use of torture on detainees in American custody, President-elect Barack Obama is going to have to open some sort of official investigation of Bush-era war crimes once he takes office.

Ever since Pentagon official Susan Crawford said she had to suspend the military commission prosecution of Mohammad al-Qahtani because he was tortured by U.S. officials, and Attorney General-nominee Eric Holder said unequivocally last week that waterboarding is indeed torture –- something legal experts have been saying for a long time — legal scholars, advocates and bloggers have been buzzing that it may now be impossible for Obama, and Holder, to simply ignore the evidence of war crimes.

As Jennifer Daskal, a senior lawyer at Human Rights Watch told the New York Times: “It would be contrary to the principles of the criminal justice system for the attorney general to say he believes a very serious crime has been committed and then to do nothing about it.”

Salon’s Glenn Greenwald laid out the case in his blog on Sunday, arguing that it’s no longer optional. Given that the United States is a party to the United Nations Convention on Torture – a treaty signed by President Ronald Reagan –- and that the U.S. Constitution holds that international treaties are the highest law of the land, the United States really doesn’t have a choice: “U.S. law requires prosecutions for those who authorize torture,” writes Greenwald.

Even Charles Stimson, the top official on detainee affairs at the Defense Department from 2004 to 2007 and now a senior fellow at the Heritage Foundation, told The Times that last week’s statements from Holder and Crawford “certainly will increase the pressure on Holder to mount some kind of investigation.”

Internally, Obama has likely gotten plenty of mixed advice on the subject. As I’ve written before, senior Obama advisor Cass Sunstein — a TWI contributor who’s since been named to head the Office of Information and Regulatory Affairs — is one of many close to Obama who’ve been, at best, lukewarm about the idea of prosecutions in the past. And Holder, though he’s taken a clear stand against torture — and now waterboarding — has never said directly that the United States must prosecute the crime, even if American officials have committed it.

Here’s what Holder said at his confirmation hearing last week, responding to Senate Judiciary Chairman Pat Leahy (D-Vt.):

HOLDER: Mr. Chairman, no one is above the law. The president has a constitutional obligation to faithfully execute the laws of the United States. There are obligations that we have as a result of treaties that we have signed — obligations, obviously, in the Constitution. Where Congress has passed a law, it is the obligation of the president, or the commander-in-chief, to follow those laws.

But is it also the obligation of the president, and his attorney general, to prosecute when those laws have been broken?

Eugene Volokh over at The Volokh Conspiracy doesn’t think so. “Prosecutors have enormous discretion,” he writes, and “the DOJ has more pressing concerns,” which is why it didn’t prosecute Eliot Spitzer for cavorting with call girls.

Still, officially-sanctioned torture is much more serious, and has far more broad-reaching implications, both domestically and for U.S. foreign relations, than Eliot Spitzer’s strange (and costly) sex habits.

But Volokh makes one good point. The next administration’s decision about whether to prosecute the current one will ultimately come down to a political calculation: Is the public really clamoring for it, and how loudly? And is it worth embarrassing the Democratic senators and representatives in Congress who were briefed on the torture, humiliation and other “extreme” techniques being used to squeeze information out of detainees, and failed to object?

Despite the strong case being made in favor of prosecution, Volokh’s probably right that it will come down to politics. That means it will depend on how strongly Americans insist that the new administration deliver what Eric Holder has promised: faithful execution of the law.

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