Rejecting the Torture Legacy

"'This administration has set a tone problem for the military,' General Eaton said. 'We've had eight years of undermining good order and discipline.'"

Obama is widely expected to accede to most of these requests; he's already on record for some of them. But it's much less clear how and if he intends to investigate the administration's torture policies and hold accountable those responsible for it.

Charles Homans wrote last week in the Washington Monthly that "when Bush hands over the keys to the White House in January, he will leave behind more unanswered questions of sweeping national importance than any modern president."

Seeing Vice President Cheney behind most of the darkest secrets, Homans wrote: "If there is one overarching priority between now and January 20, it is to surround Cheney's office with every possible legal barrier to removing so much as a Post-it Note from the premises."

And Homans concluded that Congress should lead the investigative charge by appointing "a panel that does for the wartime excesses of the Bush administration what the 9/11 Commission did for the September 11 attacks. In other words, a 9/12 Commission."

The Homans essay launched a spirited debate at the TPM Cafe Web site. Blogger Daniel Larison wrote: "If the purpose is to get at the truth of the matter to understand how these decisions were made and how they were executed, criminal investigations where the evidence that we have merits it seem to me to be the best option."

Former Republican congressman Mickey Edwards wrote that an investigation "should -- no, must -- be carried out not by an independent commission but by the Congress, just as Harry Truman, a Democratic Senator, investigated the War Department in a Democratic Administration and just as a Congress controlled by Democrats investigated the Watergate break-in during a Republican Administration."

Human rights lawyer and blogger Scott Horton responded: "I am not persuaded that the Congressional committees have the stamina, the concentration and the expertise to do what is necessary. . . . Questioning needs to be done by a professional interrogator who is focused on building a complete record, not playing to the cameras and the audience in the constituency back home."

Former Bush Justice Department official Jack Goldsmith wrote in a Washington Post op-ed last week that any kind of probe is a bad idea. "Second-guessing lawyers' wartime decisions under threat of criminal and ethical sanctions may sound like a good idea to those who believe those lawyers went too far in the fearful days after Sept. 11, 2001. But the greater danger now is that lawyers will become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgment. . . .

"The people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses. Little will be achieved by further retribution."

Salon blogger Glenn Greenwald responded sarcastically: "As Goldsmith pleads, these are people who have been so severely punished already. They are banished to toil in shameful, humiliating labor conditions -- as, say, tenured Professor at Berkeley Law School or Chief of Staff to the Vice President of the United States, with unimaginably grim futures involving millions of dollars in fees for giving speeches and writing memoirs and living in retirement off Halliburton stock. What kind of monster would want to heap still more punishment on these noble, suffering souls, just because they committed some so-called 'war crimes' and other felonies? . . .

"Goldsmith's principal point is that we will all suffer if further investigations are pursued against these high government officials, because government lawyers will 'become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgment.' Actually, the reason we have criminal laws and punishment for violations is precisely because we want to deter lawbreaking and incentivize people to obey, not flout, the law."