Why Pres. Obama Should Have Prosecuted the Bush Administration for War Crimes -- and Still Can (By Other Means)

Engaging in counterfactual, what-if history can be uselessly speculative, but here are three demonstrable ways the Obama administration -- and America too -- have been hurt by not prosecuting Bush officials for the crimes of torture and fraudulent war.
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It was meant as a magnanimous gesture. When newly inaugurated President Barack Obama announced his decision not to prosecute officials of the Bush administration for war crimes -- for engaging in torture, specifically, but also more generally for mounting a war in Iraq on fraudulent premises (the nonexistent weapons of mass destruction) -- it was, he said, to enable the nation to move forward, rather than "go backward" to re-litigate the past.

This gesture accords with a cultural tendency of ours: With hard problems, Americans prefer the quick solution, the sooner to "put it behind us."

But hard problems, unresolved, can come back to bite. Such is the case with Mr. Obama's decision to hold fire. While a war crimes trial against a predecessor would have been historic in presidential annals -- and how and under what aegis such proceedings would have taken place never got mapped out -- Mr. Obama's magnanimity to, in effect, exonerate the preceding administration, the better to go forward, has come back to haunt his own administration's efficacy and nearly stopped it in its tracks.

Engaging in counterfactual, what-if history can be uselessly speculative, but here are three demonstrable ways the Obama administration -- and America too -- have been hurt by not prosecuting Bush officials for the crimes of torture and fraudulent war:

One: Abroad, America operates without its former moral stature.

America long prided itself on being a moral beacon to the world, and we were. Our moral flaws we fixed, like eventually abolishing the evil of slavery, ending the divisive Vietnam War with protests in the streets, etc. But with the shameful "shock and awe" invasion of Iraq, and our shameful descent to torture in both Iraq and Afghanistan, we lost that precious mantle. With these violations of the Geneva Conventions going unaddressed, America cannot legitimately exert the moral sway in the world it once did.

This reduced power is acutely evident, embarrassingly so, when autocrats defy our stern talk and red lines by pointing to America's own war crimes and hypocrisy -- see: Syria's Bashar al-Assad and, more recently, the revanchist Vladimir Putin of Russia in his defense of retaking Crimea. Truly, how can Mr. Obama or Secretary of State John Kerry warn Putin against invasion, when Mr. Bush invaded Iraq, not out of necessity but reckless choice, and secured U.N. authorization with fabricated evidence of WMD? Had we prosecuted our own war crimes and reset our moral compass by recommitting to international law, we would have a leg to stand on. Til then, we don't -- and international criminals do. At the least Mr. Obama outlawed our use of torture, on his second day in office.

Two: Domestically, Mr. Obama's enemies (the Republicans) have been emboldened.

Effectively exonerated, Republicans not only felt no compunction in slapping aside Mr. Obama's hand extended to them -- the point of not prosecuting them for war crimes was the hope for bipartisan cooperation -- but they've gone on to cast at him insulting levels of disrespect. (The unreconstructed Donald Rumsfeld, Bush's Defense Secretary so keen on war in Iraq, now claims a "trained ape" could do foreign policy better than Mr. Obama.) More injurious to the nation, though, Republicans have formed a wall of near-total obstructionism to most of Mr. Obama's programs, even threatening impeachment.

Yet one has to doubt Republicans would make so bold and outrageous, if Democrats could have pushed down their throats, at crucial junctures, the label "war criminal," or if they could have reminded Republicans of their criminal past to cool their white heat. Not least, had he been put in the docket, we'd be plagued less by torture's chief cheerleader, Dick Cheney (or maybe not, as he seems impervious to shame).

Not only were Democrats stripped of the tactical weapon of the war-criminal epithet to wield at Republicans and engage more squarely on issues. But Democrats (and conscientious Republicans too) were left adrift in a moral limbo: Crimes were committed in the nation's name -- torture, fraudulent war -- but the perpetrators were not called to account; thus, absent a reckoning, (war) crime pays, apparently. Indeed, Republicans are now, with midterm elections approaching, somehow in the ascendancy. No wonder Democrats are in a funk; their funk has deeper roots than they may know.

Three: Without a reckoning on war crimes, the national security apparatus operates without check.

It was the C.I.A., given free rein after 9/11 by the Bush administration, that set up "black sites" around the world and conducted egregious acts of torture against terrorist suspects -- all actions backed by ginned-up legal defenses supplied by the administration, including the Justice Department, and all violating not only the Geneva Conventions, but America's own sense of who we are as a people.

Yet without a war crimes trial or similar accounting, we cannot know if those reins on the C.I.A. have been tightened. And now with the excesses of the National Security Agency revealed, in which we learn our government is, among other things, spying on its own citizens -- that is to say, us -- we the public get the queasy feeling of a national security apparatus now running amok. (And when he expresses more upset at the leakers than at the violations themselves and the overreach, we have to wonder to what extent Pres. Obama himself has been captured by the apparatus.)

As it happens, an occasion for a general reckoning is at hand: It is the report on the C.I.A.'s interrogation program -- i.e., torture -- detailed at 6,000-page length, prepared by the Senate Select Committee on Intelligence. History provides a do-over, of sorts.

At the moment, committee chair Senator Dianne Feinstein is in a battle royal with C.I.A. director John Brennan over suspicions the agency is spying on a congressional committee. But it shouldn't be forgotten that the object of this battle is over the contents of the report: the C.I.A.'s torture program. Reportedly, the committee has concluded, after three years of investigations of C.I.A. practices, that what transpired was indeed torture and, moreover, its use yielded little or no actionable information.

But we can't know for sure, because the report is classified, secret. It's in Pres. Obama's power to declassify the report and make it public; he has said he is "absolutely committed to declassifying [the report] as soon as it is completed." The report has been completed and is now being vetted by the C.I.A. -- which is sitting on it, no doubt desperate that the agency's torturing during the Bush administration not come to light. But the report should go public, so we can at last have that reckoning.

Because, as it happens, while the report's focus is ostensibly narrow -- the C.I.A.'s torture practices -- it touches more broadly on all three problem areas set out above.

Hashing out the torture question at long last might: one, help restore our moral stature in the eyes of the world; two, usefully remind Republicans of their, if not officially criminal, then questionable stance on torture and war-making; and, three, serve as mission review to rein in the national security apparatus. Also, Pres. Obama could do a self-check and (re)establish his independence of that apparatus.

While that public debate won't have the weight of a court proceeding, or unfold according to the organized agenda of a truth-and-reconciliation commission, still, even in more modest form, such debate can get at something vital. Which is: When Pres. Obama decided not to prosecute the Bush administration for war crimes but instead to "put it behind us," he put our good name behind us, too.

Maybe it's fitting and proper that we the people, in restating who we are and what we permit in our name, get back our good name ourselves. Declassify the torture report, Mr. Obama, and let the reckoning begin.

Carla Seaquist's forthcoming book of commentary is titled "Can America Save Itself from Decline?: Politics, Culture, Morality." Her writings on torture are included in her 2009 book, "Manufacturing Hope: Post-9/11 Notes on Politics, Culture, Torture, and the American Character." Also a playwright, she published "Two Plays of Life and Death," which include "Who Cares?: The Washington-Sarajevo Talks" and "Kate and Kafka," and is at work on a play titled "Prodigal."

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