Andrew Sullivan In The Sunday Times: Obama's First Problem Is U.S. War Crimes

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http://www.timesonline.co.uk/tol/comment/columnists/and...

From The Sunday Times
November 30, 2008
Obama’s first problem is US war crimes
The president-elect has to take a stand on Bush’s dark legacy

Andrew Sullivan

A small and largely unnoticed spat among the transition planners for the president-elect, Barack Obama, broke out last week. It was the first genuinely passionate debate among the Obamaites and it centres on a terribly difficult and terribly important decision that will be among the first that Obama has to make.

How does he deal with the legacy of criminal actions of his predecessor’s administration when it comes to detention, interrogation, abuse and torture of terror suspects? That has long hovered in the back of the minds of those of us who supported Obama, in large part because he alone had the moral authority to draw a line underneath the criminality of the George Bush-Dick Cheney years and restore credibility and hon-our to America’s antiterror policies.

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This plea for understanding for the Bush-Cheney era did not go down well with the Obamasphere – the network of bloggers who helped build momentum for Obama’s victory. The influential blogger Glenn Greenwald exploded in anger; the centrist Democratic blogger Scott Horton urged Brennan to clarify, and then urged Obama to reject him.

On my own blog The Daily Dish, I wrote that if Brennan were picked, Obama supporters “will, in fact, have to go to war with Obama before he even takes office. And if Obama doubts our seriousness, I have three words for him. Yes we can”.

Brennan, facing more protests, withdrew his name from consideration last week. In the first skirmish over the issue in the Obama era, the antitorture forces won.

But the question remains: what is to be done? It is not Obama’s style to launch into a prosecutorial investigation of intelligence officials or to open new partisan wounds by subjecting Bush, Cheney, Tenet, Donald Rumsfeld and others to war crime charges. He is intent on unifying the country, not further dividing it. He needs the professionals running the antiterror effort and, after eight years of Bush-Cheney, it is hard to find people not tainted by torture.

There is also the possibility that Bush himself might make a preemptive strike and, upon his departure from Washington, issue a blanket pardon for all his aides and underlings who aided and abetted war crimes in the past seven years. Leaving those pardons in place while prosecuting low-level officials or CIA agents would be deeply unfair. That was the rationale behind the 2006 Military Commissions Act, which gave retroactive immunity for war crimes to civilians in the administration, but not to the military grunts who enforced the policy, and which carved out a continuing exception for torture to CIA agents.

So perhaps the sanest way forward is a truth commission, modelled on those in Chile and South Africa that maintained governmental continuity for a while but set up a process that allowed for a maximal gathering of the relevant facts and names. The president could appoint a powerful and respected prosecutor to begin the process. The commission would focus not just on the military and CIA but also on the Bush justice department and Office of Legal Counsel, and the abuse of the law and its interpretation that gave Bush and Cheney transparently phoney legal cover for war crimes.

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