Sometime in the early afternoon next Tuesday â€“ after Barack Obama takes the oath of office, and before the new President and First Lady take the traditional stroll up Pennsylvania Avenue â€“ one of the dayâ€™s most joyous events will be ignored by the vast majority of inauguration watchers. TV viewers will be taking a long-needed lunch/potty break; meanwhile, on the National Mall, several million jubilant yet wretched souls (myself included) will begin wondering whether itâ€™s worth continuing to freeze our asses off outdoors, or whether we should blow off the parade and go see a movie.
At that hour, on the Capitol grounds, a once-powerful private citizen will board a helicopter and leave the city in which he has resided these last eight years. As he lifts off and flies over that city â€“ a metropolis whose defining institutions he has left in profoundly worse shape than he found them â€“ one can only hope that he will look down upon those millions of revelers and achieve an all-too-rare moment of self-awareness. That heâ€™ll turn to his wife and say, â€œLaura, there sure are a frickinâ€™ lot of people down there who are glad to see me go.â€
As the hours blissfully speed away toward the end of the Bush administration, assessments of its â€œlegacyâ€ continue to bog down â€“ not over the relative weights of its accomplishments (were there any?), nor over rankings of its disastrous failures, but over an astonishing question that pretty well defines the first decade of the 21st century: Will these criminals ever be punished?
The question is not, were crimes committed? They were. On torture and indefinite detention, on warrantless wiretapping, on the partisan hiring and firing of U.S. Attorneys and other supposedly non-political appointees, on cooking the intelligence that led us into Iraq, on shielding the identity of a covert CIA operative â€“ and on heaven knows what other nefarious actions? — history will indeed record that criminality ran rampant through George W. Bushâ€™s administration.
How much those crimes will continue to cost us as a nation, in terms of constitutional liberties defiled and international standing lost, is yet to be determined. But the prevailing expectation is that the perpetrators of those crimes â€“ from Bush, Dick Cheney, Donald Rumsfeld, George Tenet and their uppermost advisors straight down through the executive-branch bureaucracy â€“ will walk away from them scot-free, subject to no verdict apart from that rendered by history. And as Bush himself has gleefully reminded us on numerous occasions lately, â€œBy the time history renders its verdict, you and I will be dead. So I donâ€™t worry about history.â€
Sure, Henry Waxman waxes prosaic in House committee rooms about â€œaccountability,â€ and Dennis Kucinich continues to stamp his feet and shout into the breeze. But rather than grand juries and indictments and convictions, most of the talk these days is about bipartisan panels and published reports, and precautionary measures implemented to make sure This Never Happens Again. The Bushiesâ€™ transgressions apparently are so dire that politicians and pundits have called specifically for a â€œTruth and Reconciliation Commission,â€ of the type made famous in post-apartheid South Africa. But apparently theyâ€™re not so dire as to require a Nuremberg Trial.
Part of this is the understandable urge to move forward â€“ after all, Bush is leaving his successor (and the rest of us) with huge economic, military, diplomatic and other messes to clean up, and those will require all the attention our elected officials have to spare. Part of it is a civilized societyâ€™s desire not to inflict undue humiliation on a group of people whose actions and ideas have already been so thoroughly discredited. (Harvard Law School professor Charles Fried argued this point nicely in last Sundayâ€™s New York Times.)
Most of it, however, is the final step in a program of political expediency that has been implemented ruthlessly (if gutlessly) by the Democratic Party since the 2004 election. When confronted with one Bush/Republican horror after another â€“ most notably the Katrina response and the Military Commissions Act of 2006 — Democrats played the bullfighter, allowing the bull to charge on past and become more crazed and discombobulated. They were content to steer clear of the GOPâ€™s widely recognized moral/ethical/policy collapses, rather than filibuster bad bills or otherwise create the kinds of partisan fuss that might gin up the depressed conservative base. (They had learned the lessons of 1998-99, when the Republicansâ€™ excessive pursuit of Bill Clinton came to seem far more unsavory than anything Clinton had done.)
The Democratsâ€™ initial reward came with the takeover of Congress in 2006. Even after that, though, they allowed Bush and his remaining allies to stay in the ring and continue to soil their legacy â€“ to say nothing of the nationâ€™s laws. Nancy Pelosi and Harry Reid took impeachment off the table almost immediately after they took up their gavels; most notoriously, early last year they caved on the FISA Act, allowing Bush once again to write his prior criminality into the civil code. Through it all, Reid and Pelosi and, yes, Joe Biden and Hillary Clinton and Barack Obama seemed to believe that if they simply held their breath long enough, the Republicans would destroy themselves, Obama would assume power, and together they could undo everything Bush had done. If they could just keep on whipping the red cape around, they could entrance the Republican bull long enough to lay the beast low.
On November 4 they did just that. Since then, Obama has already set about undoing some of Bushâ€™s damage: announcing his intention to shut down Gitmo, pledging that the United States will no longer torture its political prisoners, promising thorough reviews of various Bush policies. However, Obama has equivocated on the subject of prosecuting the Bushiesâ€™ crimes; he has said he wonâ€™t make it a priority to pursue them, but that if evidence of criminal activity is uncovered his Justice Department will ensure that justice is done.
To overextend my bullfighting metaphor once more â€¦ the typical corrida ends with the bull bleeding out on the plaza, to the cheers and thrown roses of the matadorâ€™s adoring public. Occasionally, however, when a bull is deemed to have performed bravely, he may be granted an indulto â€“ an opportunity to escape his fate, leave the ring alive and return to the ranch. Our collective decision on how to dispose with the Bush administrationâ€™s criminality seems similar to that choice. Will our thirst for closure be slaked by the knowledge that Bush is gone and canâ€™t do any more harm â€“ or by the report of a blue-ribbon panel that confirms and expands upon what weâ€™ve already learned, but demands no accountability? Or will we insist upon the extraction of justice, the rendering of judgment and the punishment of wrongdoing, even if that means furthering the partisan animosity that all of Washington is right now scrambling to play down? (And even if it means risking the Democratsâ€™ new grip on power?)
My guess is that the first course of action will prevail, and that on his way back to the ranch Bush can breathe a sigh of relief at the indulto he seems certain to receive. One caveat, however: In the end, the bull granted an indulto usually winds up suffering a fate crueler than a quick death in the ring, succumbing slowly over days or even weeks to injuries sustained in the fight. It is the rare animal that lives to battle, breed, or even munch on the meadow another day.
On Tuesday I will stand with the multitudes on the Mall and cheer the most obvious result of the Democratsâ€™ expediency â€“ a new president and progressive majorities in the House and Senate that seem like they might endure a decade or more. I will not, however, cheer the way we got here, because the Demsâ€™ reluctance to rock the boat enabled Bushâ€™s GOP to inflict far too much damage upon the country on its way to self-immolation.
Democrats seem determined to offer their defeated adversaries one more â€œOlÃ©!â€ on their way out the door, in the name of maintaining those new majorities. Where that leaves the rule of law in this nation is open to dispute. At the same time, however, other nations may harbor few qualms about plunging the sword in at the first opportunity, and prosecuting a series of war crimes their citizens find only slightly less heinous than those of Slobodan Milosevic or Saddam Hussein. So if Bush, Cheney, et al have any sense at all, theyâ€™ll accept their indulto, head back to their respective ranches â€¦ and tear up their passports.