If, or when, Barack Obama becomes president of the US, the question will arise of how hard to go after the multitude of illegalities perpetrated by the Bush administration. One of Obama’s legal advisers, Cass Sunstein, has said publicly that what many reasonable people consider crimes are merely political differences and it would be bad to try submit them to the justice system. (There’s a lot of great stuff in response to Sunstein from Glenn Greenwald.) This is patently absurd. Any unbiased observer will recognize that the Bush administration has been up to its eyes in crime. These crimes range from the (apparently) trivial – failing to keep proper records, conducting partisan political activity – to the horrific – torturing people, imprisoning them illegally, denying habeas corpus. Then, there’s the whole category of war crimes and crimes against humanity.

Obama’s emphasis on bi-partisanship suggests he will be open to an argument that apologists for the administration are bound to make. The argument is that all these activities, illegal or not, are in the past. What is important is not to point the finger of blame but to invest our energies in building for the future. This is a lousy argument and must be resisted at all costs.

To see how absurd the argument is, consider how any criminal could employ it will equal (un)justification. Yes, I murdered this person, but what’s done is done. My crime is in the past. What is important is the future. If I am in jail, how can I be a good member of society? Nobody would be taken in by this for a moment.  That isn’t to say we must punish any and all crimes. Considerations about how the future is served are relevant to determining the punishment in any given case. But we cannot sweep crimes under the carpet. Justice requires that we confront the past.

The same holds true with respect to the Bush administration. Justice will be an empty word in this country henceforth until Bush, Cheney, Rumsfeld, Rice, Powell, Ashcroft, Gonzalez (to name only the most prominent) are held to account. We can discuss what the appropriate response should be: jail, community service, public confession and apology, or something else.  But held to account they must be if this country is to continue to be one we can work to be proud of.

UPDATE (10/10/08): All this said much better by Meteor Blades on Daily Kos.

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