Why Obama's Excuse for Not Prosecuting BushCo Just Won't Fly

I'm somewhat of the mind that Digby is -- if Obama were to announce right now that he was going to prosecute those who engaged in torture and war crimes, it could trigger a rash of unwanted pardons before Bush left office.


But the reason that's being given for not doing so makes little sense:

"My orientation's going to be to move forward," Obama said. The attorney general has to stay above politics and "uphold the Constitution," Obama added, but his administration will focus on "getting things right in the future as opposed to looking at what we got wrong in the past."

Any decision to not pursue those who broke the law is in no way "above politics" --  if we were going to apply this principle across the board, it would have as Ari Melber notes rather strange implications:

No one argues against prosecuting Bernie Madoff so that the Justice Department can focus on fixing the economy, going forward. In fact, faithfully and uniformly enforcing the law is crucial to "getting things right in the future." Any deterrence produced via criminal sanction is undermined when future, potential offenders see that a law is not actually enforced. People are more likely to follow the law when they see that breaking it carries consequences. This is such a basic foundation of our criminal system, justified by the elemental rationales of deterrence and retribution, it is quite hard to imagine that so many seasoned attorneys and Washington journalists honestly believe that the best way "forward" is to undermine deterrence and the rule of law. 

Obama's appointment of Eric Holder and Leon Panetta, who have made strong statements against torture, does indeed imply that he intends to "get it right" going forward. 

But it is disconcerting that, as Glenn Greenwald observes, Obama indicated yesterday that he is looking for a way to set up a system outside the courts where evidence obtained by torture can be used against Guantanamo detainees.  Glenn discusses Obama's interview with George Stephanopolous:

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