Counterpoint: don't prosecute the Bush administration

Now here's a solid argument against putting Bush administration officials on trial:

I think that many people underestimate how incredibly difficult it would be to prove any high level Bush administration official guilty of war crimes in a court of law. The non-lawyers (people like Bush, Cheney, and Rumsfeld) will point to the fact that all of their orders and directives were given the legal blessing of DOJ lawyers, lawyers who graduated from Yale and Harvard and currently hold faculty positions at prestigious law schools. They'll bury the court in an avalanche of motions to dismiss and to suppress evidence, trotting out every conceivable constitutional or executive privilege objection. And they'll parade in witnesses to testify about the dire threats they were facing and all the legal advice they sought and received. Convictions would be enormously difficult.

As for the lawyers themselves (Yoo, Addington, etc.), while I think they are the most to blame in this mess, it's hard to see how they could be prosecuted criminally. They didn't order anything or engaged in any acts of torture. They just provided really bad legal advice. But it's the same stuff they write law review articles about, so it's hard to see how you can make a criminal case out of it. They'll just claim they interpreted the law differently than others.

I realize that a lot of you think a "Truth Commission" is insufficient. But isn't it preferable to a series of high-profile acquittals?

I admit I hadn't thought about these challenges very carefully. I think Anonymous Liberal is right that prosecutions risk the validity of the case against the Bush administration. Even if the President and his advisers are acquitted on technical grounds, it would be easy for Bush partisans to spin the acquittal as a victory for a policy of torture and illegal detention. Is that a risk that Americans can afford to take?

Yet my criticism of AL remains similar, in a way, to my criticism of Schweber: namely, that I don't get the sense that either man has properly balanced the seriousness of the violations with the risks of prosecution. Both assessments have instead given a great deal of weight to partisan rhetoric; far more weight, in fact, than has been given to the actual violations of civil liberties perpetrated by President Bush.

We're not talking about minor infractions in the service of God and Country. This is 1984-level stuff -- the rules that Bush et al invented gave them the power to completely destroy anyone they felt merited such treatment. The fact that they resisted the urge to do so does not change the fact that they opened the door to that dark world. The fact that damage to bipartisanship is even entering this debate as a serious consideration indicates to me that AL and Schweber are still experiencing a fundamental disconnect between what actually transpired during Bush's tenure, and what his violations could (and still can cause) in the future.

If we revise the scale to match the risks that President Bush took, rather than the lives he actually destroyed, a prosecution suddenly seems as though it could still be worthwhile. But I admit I'm no longer at all sure. Perhaps a compromise might be for Holder and the DOJ to conduct an internal investigation, and then advise Obama on the chances of a conviction. Based on that assessment, the department could either pursue criminal charges, or establish a "truth commission" which would simply make public whatever information could be collected.

But that still doesn't answer the central question, which now reads: what percentage chance of a successful prosecution should President Obama consider actionable? 70%? 90%?