Compromise we can believe in.


Lots of discussion these days of possible Bush pardons of any- and everyone in his administration who could face prosecution for crimes committed during the “War on Terror,” and of what President Obama will do regarding such investigations and/or prosecutions.  Some want congressional investigations.  Some want a special prosecutor.  Some want something like South Africa’s Truth & Reconciliation commissions, which is an idea I’ve suggested before.  (I can’t remember where, but I think it was in a comment around here, somewhere.)  Some want an investigatory board.  Obama pretty clearly wants none of the above.

Personally, it’s been clear to me for quite a while that that was the case. Obama has been much too much of a conciliator to pursue such investigations. I think his approach is bad for the country in the long run, but in the short run, I can see his point.

What I would like to see, however, is an executive order that makes all of the memos, etc., public. He did run on transparency in government, after all.

ISTM that would also solve the current stalemate with congress over some of those papers (i.e., the ones they’ve subpoenaed but the Bush administration has refused to give them). They still want the papers, but Obama is worried that if they get them, congress will get bogged down in investigating the Bush era at the cost of moving legislation forward in the Obama era. Fair enough. Make a deal with them to make all the documents public, in exchange for congress not investigating.

Publish them all online.  Let the public — journalists, public interest groups, bloggers, dare I say historians, etc. — go through them and make it known what the Bush administration actually did and didn’t do. And if private-party suits or prosecutions can be brought as a result, let a thousand flowers bloom.

A not inconsiderable part of me thinks that’s better than all the other options, anyway.  Failing publication of the papers, though, I could still settle for a T&R approach.

I bet this is generating a lot of interesting discussions in law schools around the country.

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5 Responses to “Compromise we can believe in.”

  1. Terry A. Says:

    I don’t have a grasp of how the administration communication process works — I’m still shocked after learning that presidents don’t use e-mail — but could Bush do an end-around on your process above by having someone destroy the docs over the next two months, and then pardon the shredder(s) as his last act in office (other than removing the O keys from all the keyboards in the WH)?

  2. alsturgeon Says:

    There could be talk of such interesting things at this law school, but as a 1L doing his graded memo pre-finals this week, to quote the late, great Sergeant Schultz, I know nothing. Hopefully life will resume some semblance of order next week.

  3. DeJon05 Says:

    I’m glad to hear Obama won the presidency, but for the next month the only things swimming in my brain will be things like Blackacre, the well pleaded complaint rule, promissory estoeppel, and respondeat superior with intermittent breaks to watch the

    Sacred Bleu!

  4. michaelllasley Says:

    I got nothing, as usual. I like your proposal. Any word on the chances of something like that happening? The T&R proposal is also interesting, but I can’t imagine that happening — I don’t think there’s enough trust going around for that.

    And are there rules in place to keep something like the ever-joyful Terry A. proposes from happening?

  5. urbino Says:

    Nope. I’m virtually certain it’s never come up before, but there’s nothing I can see that would prevent the president from doing it.

    There’s also the possibility that Bush will continue to shield the documents even after he leaves office. Apparently, he may have “residual” powers to claim executive privilege. This makes absolutely no sense to me, but Truman claimed it existed, congress didn’t challenge him on it, and that left a [rather shaky] precedent.

    As for the chances for my idea, I haven’t even seen it discussed anywhere. I dunno if that means nobody thought of it, or there’s an obvious problem with it that I don’t know about.

    The T&R thing is getting mentioned here and there, but that’s all.

    I still think Obama will just let the whole thing completely drop.

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