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Monday, January 12, 2009

On looking forward

By now, most of you are probably familiar with the Change.Gov "Open for Questions" system, where we can all sign up to submit questions to the Obama team and vote on the worthiness of questions submitted by others.

In many ways, it's a beautiful system and if nothing else it is a great experiment in 21st-century style direct democracy. So far, two rounds of question submission and voting have been conducted. Round 2 closed recently, after garnering 76,031 questions from 103,512 people, who collectively cast 4,713,083 votes. Let's hope they keep doing this.

But on to some actual results. To no one's real surprise, the top question was about investigating the torture and warrantless wiretapping to determine who, if anyone, broke any laws and to prosecute them if they did.

Yesterday, on ABC's "This Week" program, George Stephanopoulos asked for Mr. Obama's answer:

STEPHANOPOULOS: The most popular question on your own website is related to this. On it comes from Bob Fertik of New York City and he asks, “Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping.”

OBAMA: We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth. And obviously we’re going to be looking at past practices and I don’t believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering [up].

Mr. President-elect, a simple "Yes" would have sufficed.

Sir, I am not satisfied with that answer. First of all, raising the spectre that CIA operatives would be too worried about going to jail to do their jobs is a straw-man argument. CIA operatives who do their jobs right (that is, within the bounds of the law) have nothing to worry about. The ones who don't, well, I'm not really going to lose any sleep about their potential legal troubles.

But more importantly, investigating crimes that may have taken place and prosecuting the offenders is a very forward-looking thing to do, and you know it. You're a legal and constitutional scholar of the highest order, so I know you're as aware as anyone of the power--and the danger inherent in that power--of setting precedent. Either directly, by taking new actions, or indirectly by tacitly consenting to the prior actions of others. The Bush administration set these precedents by acting directly. But they will not have succeeded unless you give your tacit consent.

All that is required for evil to triumph, Mr. Obama, is for good men to do nothing. If you do nothing, now, about the terrible precedent that torture of prisoners at Abu Ghraib and Guantanamo (which we know took place), or about the warrantless wiretapping program (knowledge of which, again, is now part of the public record), then you sir are culpable of letting that precedent become established. Of letting two noxious and invasive weeds set their roots deep between the flagstones of our democracy.

Investigating and prosecuting is forward looking. It protects the future. It is what is necessary, both at home and abroad, to demonstrate that although America is as imperfect as any other collection of fallible human beings, that we do police ourselves and in the end we do live up to the values of decency and respect for others that we claim to espouse.

We claim to be a nation of laws, Mr. President-elect. If we do not investigate transgressions of those laws and prosecute those who break them, then the rule of law is meaningless. We claim to be a nation of equal justice for all, but how can that be true when there are no consequences for those who were responsible for the torture of other human beings or for the violation of the 4th amendment rights of thousands of law-abiding Americans? We teach our children in grade school that no one is above the law, so how will we explain to them when our children ask why these things were allowed to happen and why no one was punished for them?

Our rule of law is the foundation of our society. Repairing the cracks in that foundation is among the most forward-looking things you will have the opportunity to do during your tenure at 1600 Pennsylvania Ave. I know it won't be fun. I know it won't be easy. I know there are those who will cry, in shrill and derisive voices, that it is nothing more than politically-motivated retribution. But you know better. And I know better. And the millions of people who voted for you, as well as the millions who voted for justice on Change.Gov, know it.

You can wrap indifference in a cloak of fine words, telling us to ignore the past and look to the future. But sir, the future is shaped by the past. You cannot tend to one while ignoring the other.


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