Barack Obama and crimes of the Bush-Cheney Administration

This story is an excellent example of a serious problem, not only for Obama himself as a President but also for the Democratic Party more generally: their acceptance of Presidential impunity for criminal actions and the larger circle of immunity that flows from that. Obama Voices Concerns For Dropping Charges Against Gen. Flynn In Private Call MSNBC 05/09/2020:

Obama's own Administration was remarkably free of corruption based on what has come to light. And that should be a model for other Presidents to follow.

But one of Obama's most consequential Presidential legacies is this: David Johnston and Charlie Savage, Obama Reluctant to Look Into Bush Programs New York Times 01/11/2020, Bush's criminal torture programs in particular are referred to here:

In the clearest indication so far of his thinking on the issue, Mr. Obama said on the ABC News program “This Week With George Stephanopoulos” that there should be prosecutions if “somebody has blatantly broken the law” but that his legal team was still evaluating interrogation and detention issues and would examine “past practices.”

Mr. Obama added that he also had “a belief that we need to look forward as opposed to looking backwards.”

“And part of my job,” he continued, “is to make sure that, for example, at the C.I.A., you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got spend their all their time looking over their shoulders.”

The Bush administration has authorized interrogation tactics like waterboarding that critics say skirted federal laws and international treaties, and domestic wiretapping without warrants. But the details of those programs have never been made public, and administration officials have said their actions were legal under a president’s wartime powers. [my italics and bolding]

The only thing Dick Cheney couldn't give his Unitary Executive experiment under the Bush Administration was a subsequent Democratic administration that granted de facto immunity from prosecution for serious crimes committed by Bush-Cheney officials. Barack Obama and his Attorney General Eric Holder from 2009-2015 gave him that. The same was true of his successor under Obma, Loretta Lynch.

This wouldn't have to have been a "political" investigation and prosecution. There are a variety of laws and organizational structures intended to prevent politicized prosecutions. The case of Michael Flynn which has been prominently in the news the last week was one in which a former Trump Administration official was investigated, prosecuted, and convicted by the Justice Department under the Trump Administration.

Eric Holder could have directed such investigations to be done in the regular Justice Department structure. He could have recused himself from decisions on such prosecutions to minimize the effect of inevitable Republican accusations that the investigations were partisan. He could have established a Special Prosecutor like Robert Mueller's investigation on Russian election interference. Obama could have asked Congress, which had Democratic majorities in both Houses in 2009. to establish and Independent Prosecutor, although the reckless and irresponsible Ken Starr tarnished that idea badly. He really did run a crassly partisan investigation.

But regardless of the particular organizational approach used, the Obama Administration had the most serious kind of responsibility to investigate and prosecute crimes committed in the torture program and the deliberate deceptions the Bush-Cheney government engaged in to persuade Congress to approve the invasion of Iraq based on phony claims made to Congress in knowing bad faith.

Instead, Obama adopted a policy of de facto impunity under the slogan of looking forward not backwards. Which, of course, is not the standard applied to crimes not committed by CEOs or senior government officials.

That was a real failure. Trump as President would have been corrupt and otherwise criminal. Because that's who he is and what the Republican Party is now. But it would not have been so easy if crimes during the Cheney-Bush Administration had been professional investigated and prosecuted.

See also:

• Mark Thompson, Obama's Growing Dilemma on Torture Prosecution Time 04/22/2009
• David Cole, Obama’s Torture Problem New York Review of Books 11/18/2010
• Glenn Greenwald, Obama's justice department grants final immunity to Bush's CIA torturers
• The Guardian 08/31/2012 Adam Serwer, Obama's Legacy of Impunity for Torture The Atlantic 03/14/2018

Trump is now suggesting that his Administration will concoct some kind of completely bogus charges on which to prosecute Obama himself. So his generosity to officials of the preceding Republican Administration is apparently not reciprocated by the subsequent one. The result: Republicans think they are free to break the law in their official positions, including ginning up phony charges against Democrats.

But that particular tradition of granting immunity for criminal acts of torture was continued under Bush-Pence, and expanded to include what seems to be the entire government: Michael McGough,Like Obama, CIA nominee [Gina] Haspel wants to ‘look forward’ on torture questions Los Angeles Times 05/09/2018.