The Cheney-Bush torture crimes, the Obama Administration, and the Trump Administration's lawlessness

Back on New Year Day 2011 in a post called The Obama Administration: Strategic political problem? Or good enough at putting "points of the board"?,I concluded with this:

And regardless of what position it occupies at the moment on the left-to-right scale as determined by the Beltway Village, the Obama Administration's failure to properly investigate and prosecute known criminal actions by the Cheney-Bush Administration, especially the torture program in which both Bush and Cheney have publicly and explicitly acknowledged being involved in acts that [are] unquestionably criminal, is a fundamental failure in its duty to defend the Constitution and the laws of the country. The torture issue isn't going away. But Constitutional government was nullified in significant ways by the previous Administration. And the failure to prosecute all but guarantees that the next Republican Administration will consider itself even less bound by US or international law.

I put that in the context of an analysis by Marshall Ganz on how Obama's Presidency was transactional rather than transformational.

Not every President is going to be a Franklin Roosevelt or a Ronald Reagan who makes a fundamental shift in the dominant policy paradigms: the New Deal in FDR's case, Thatcherite neoliberalism in Reagan's case.

But prosecuting current or former officeholders for real crimes would fit within either a transactional or a transformational Presidency. Because it's about enforcing the law and upholding the Constitution.

Obama's Administration did do some things of questionable legality. In their aggressive prosecutions of whistelblowers, for instance. Or the drone strikes targeted on individuals, including in at least one instance an American citizen.

But we can't say that Obama is to blame for the criminal actions of the Trump-Pence Administration. However, Obama did fail in his Constitutional duty to prosecute serious criminal wrongdoing. Particularly over the torture program. The Torture Convention signed by St. Reagan and approved by Congress binds the US in international law to prosecute such crimes, including by American citizens and officeholders.

Dick Cheney, an advocate of the Unitary Executive theory of Executive power under which the President is essentially not bound by law, is something he worked decades to implement. Including, I would say especially, with the torture program, because it was such a serious violation of law and human rights. He managed to set important precedents for future Presidents to justify similar legal actions.

The one thing that Cheney could not deliver was having impunity for those crimes recognized by a Democratic Administration. And that's what Obama and his Attorney General Eric Holder gave them.

Given the scenes of Trump speaking to mobs chanting "Lock Her Up" and directly threatened to have Hillary Clinton put in jail in one of the 2016 election debates with her, it's worth noting what a correct approach to prosecuting crimes of senior officials in a previous Administration. Essentially, it would mean appointing an Attorney General who clearly understands his duty to do so. The investigations should be professional and not directed by political actors. They could be invetigated by professional prosecutors in the Justice Department. Or a Special Counsel arrangement could be used, as with the Mueller investigation. Or it could be handled by a Special Prosecutor, although the infamous Kenneth Starr gave that approach a bad name.

But government officials should not have effective impunity for committing crimes in office. And those involved in the torture program should definitely not have been effectiely granted impunity by the Obama Administrtion.