The Rule of Law

David Broder of The Washington Post and David Frum of The American Enterprise Institute and New Majority make a similar argument against an Obama administration investigation of potential war crimes by Bush administration officials in approving the use of torture.

Broder:

The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places -- the White House, the intelligence agencies and the Justice Department -- by the proper officials. One administration later, a different group of individuals occupying the same offices has -- thankfully -- made the opposite decision. Do they now go back and investigate or indict their predecessors? That way, inevitably, lies endless political warfare. It would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness -- and injustice.

Frum:

If Obama proceeds to take legal action against those who did what they thought was right to defend the country, all that will change. Prosecutions launched by Obama will not stop when Obama declares "game over." If overzealousness under Bush becomes a crime under Obama, underzealousness under Obama will become a crime under the next Republican president.

Broder and Frum overlook the fact that the Bush administration policy of programmatic torture was much more than "policy disagreements" and "overzealousness." These abhorrent practices have been defined by both United States and international law as criminal behavior for many years. As Andrew Sullivan points out in The Daily Dish, such interrogation techniques violate the core philosophy of the founding of our country.

There is no way the American experiment can continue while legal and historical precedent gives the president the inherent authority to torture. It is the undoing of the core idea of the founding - protection against arbitrary, lawless, cruel and despotic rule.

Investigation and possible prosecution of these crimes could certainly be as divisive as both men fear. However, if the integrity of our political system of laws, not of men, is to be preserved, such controversy must be dealt with. Investigation should proceed under the leadership of non-partisan figures with strong background in law, diplomacy and national security as Nicolas Kristof of The New York Times suggests.

The truth commission shouldn’t be bipartisan. Rather, it should be nonpartisan, led by prominent legal figures and national security experts who are not strongly associated with a political party. Among those often mentioned are Sandra Day O’Connor, Thomas Kean and Lee Hamilton, along with retired generals and intelligence experts. Such a panel could not be accused of a witch hunt.

--Ballard Burgher