In the run-up over the last weeks to the presidential transition, there has been a lot of talk about what to do about the Bush/Cheney administration's eight-year assault on the Constitution. (See, for example, Harvard law professor and former Reagan appointee (solicitor general) Charles Fried, Slate senior editor Dahlia Lithwick, Yale law professor Jack Balkin, Nobel Prize winning economist and New York Times columnist Paul Krugman, among others.)
Some say those who were responsible at the highest levels for authorizing such abuses as torture, incarceration for years without access to lawyers or legal process, warrantless wiretap programs, allowing the Justice Department to become a partisan vehicle for rewarding the administration's supporters and punishing its critics - to name just a few - should be criminally prosecuted. On the other extreme, some say what's done is done, and we need to look forward, so we should do nothing.
Probably the best approach, however, everything considered, is the middle ground: holding a full set of hearings so that we will finally be able to know the full extent of the various abuses and egregious excesses (given his advocacy for the technique in getting people to spill, maybe Dick Cheney should be waterboarded if he continues to resist providing information - what's good for the goose is good for ....); but not going for criminal prosecutions, with all of the delays and legal maneuverings that would entail.
Yes, we want to hold the perpetrators accountable, but the most important thing is to expose all of what went on so that it can be held up to the light of national and international condemnation. Criminal prosecutions would hinder that goal, and could turn into a frustrating legal circus. By contrast, a sort of American version of a Truth and Reconciliation Commission would more easily allow the evidence to come forth since it would not be subject the rigorous procedural and evidentiary requirements of a criminal trial.
In this way these people may be fairly judged - and likely condemned - by the court of history, with their names living on in infamy for betraying the high principles of fairness and justice for which America and its constitutional form of government stands.
