Legal Commentary

Ah, Jack, you're not thinking outside the box. There's a difference between "figuring out whether there's a case to be made" and instituting a prosecution. I've been pushing the idea of an internal Church Committee like report on what happened, leaving it to the public to decide whether it approves of what Bush et al. did. My fantasy is that there would be a section simply describing the principles of liability laid out in the Nuremberg lawyers' judgment -- and let people draw their own conclusions about Yoo.

That does not mean that there would be no obstacles to such Congressional investigations or to a "truth commission." An Obama or Clinton Administration might not want to reveal everything that Congressional investigators or members of a truth commission wanted, partly to preserve executive branch prerogatives, partly because some classified materials still affect national security, and partly because some classified materials would embarrass not only the Bush Administration but also the present Obama/Clinton Administration and the previous Administration of Bill Clinton.

It's also possible that members of the Bush Administration would refuse to testify, arguing that they cannot do so without permission of former President Bush. If the commission or the congressional committee then held them in contempt, this would put the next Justice Department to the unpleasant choice of deciding whether to prosecute these former government officials, not for war crimes but for contempt.

Finally, there is the possibility that these hearings would so exacerbate partisanship that nothing would get done in Congress despite the fact that the Administration chose not to bring any criminal prosecutions at all.

Despite all of these obstacles, Congressional investigations and/or a truth commission into interrogation and detention practices is a far more likely response to the criminal behavior of members of the present Administration than a prosecution for war crimes within the United States.

Full post as published by Balkinization on April 10, 2008 (boomark / email).