It is a hallmark of a sane and moderate society that when it changes leaders and regimes, those left behind should be abandoned to the judgment of history. It is in savage societies that the defeat of a ruling faction entails its humiliation, exile and murder.
Then, we would have the trials themselves — protracted, interspersed with motions and delays, obsessively followed by cable channels filling in the many dull spots with endless commentary from teams of so-called experts, the whole spectacle stupefying rather than edifying the public and doing little to enhance respect for the law. A feast for lawyers and legal junkies, criminal prosecutions would be an embarrassment and distraction for the rest of the society that wants to get on with solving the great problems of the present and the future.
And what about Nuremberg and the trial of the Japanese war criminals? Were those a mistake, too? Not at all. Those were crimes against whole populations in wars of aggression. An analogous point holds for the criminal leaders of Rwanda, Serbia and Sudan.
If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all.
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.
§ 371. Conspiracy to commit offense or to defraud United States
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
The criminal prosecution idea is wankery. It's not going to happen.
The last thing the Obama administration wants is a protracted trial, where Bush gets a (really quite good) chance of defending himself to the public as a good-intentioned bla bla bla
There seems to be an assumption on the part of people calling for prosecutions that it would end up with Bush and Co. callow and humiliated, or perhaps with a sort of Frost/Nixon teardown on the stand; I'm not sure that's assured.
I think there's a very real chance that they could end up -- almost regardless of the legal conclusion of such a trial -- in a better position with regards to public opinion than they are now.
Indeed, that's the core function of the Congressional Intelligence Committees, the reason why they were created in the first place in the wake of the Church Commission. As the Senate Committee's Charter itself says, the Committee is "to provide vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States."
1) Inviting a gay preacher to give one of the invocations at the inaugural, which came about because of people being upset with Rick Warren
2) Dumping John Brennan as a potential CIA chief because of positive statements about torture, and replacing him with someone strongly anti-torture.
3) After coming out with a 700 billion dollar stimulus plan, with lots of tax cuts, being willing to up that after meeting with senate democrats. This one is a little weak because before he came out with the concrete plan he had said it would be between $700 billion and $1.5 trillion
4) After saying he wouldn't close Gitmo in the first 100 days on Stephanopolous's show, he came out the next day and said he would issue an executive order on his first day as president to begin the process of closing it.
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