Accountability Now

When it comes to the newest among the highest-ranking officials at Justice, it's one of those good news, bad news things.

Let's first be positive, which is a bit easier to do when we have an attorney general (as soon as the Republicans are through playing games) who is capable of looking straight into the probing eyes of the Senate Judiciary Committee and affirm unequivocally that, yes, strapping a man down and then damn near drowning him is torture.

And, as the Politico characterized it yesterday, just below the nation's top cop will be some of George W. Bush's "fiercest critics": Dawn Johnsen as assistant attorney general in charge of the horrifically sullied Office of Legal Counsel, accompanied by Martin Lederman and David Barron as deputy assistant attorneys general.

Not only have these Constitutionally hawkish appointees criticized the "flawed legal reasoning" that underlaid the former president's torture policies -- (it's still stunning, as an American, to have to write such a thing) -- they've done so with appropriate flourish, such as when "the three signed one statement, which Johnsen principally wrote, favorably quoting a comparison of Bush’s attorneys to Mafia lawyers."

Plus, in two Harvard Law Review articles for the ages, Barron and Lederman reassuringly argued that Yoo-know-who's legal foundations for a roguish unitary executive, above and wholly unsupervised by Congressional oversight, were, in the Politico's words, "a modern invention," and in their own words, "a radical attempt to remake the constitutional law of war powers."

Amen, hallelujah and praise be: a trio of Justice Department lawyers who can Constitutionally spell and define "checks and balances."

Said Rosa Brooks, who teaches law at Georgetown: "I think they will be an irritant for Obama in the best possible way -- they’re very honest lawyers. When Dawn and Marty and David think that he is asking if he can do something that in their view pushes the envelope and goes beyond the bounds of what is legal, they’re going to say, 'Sorry Mr. Obama, we think that would be illegal.'"

Which gently segues into the bad news:

"The Obama lawyers have ... drawn fire from the left for their arguments against prosecuting their predecessors," wrote the Politico in a needlessly polarized statement to which I take somewhat minor exception, since it neglects impassioned pleas from conscientious members of the right as well, such as Bruce Fein.

Still, no doubt most of the incoming fire as been from the left, although its aim has been delicately misdirected: It's the new president -- not Justice -- who regrettably has ordered the political landmine-skirting policy of non-prosecution.

Yesterday, Mr. Obama reasserted that his administration would be guided by facts -- that, in effect, to put it in academic terms, research would drive the thesis, and not the other way around.

Well let's do have a go at that.

Dawn Johnsen, for instance, once bluntly identified the Bush administration's creative behavior as "illegal," and Martin Lederman observed that former A.G. and future best-seller Alberto Gonzales likely conspired "to violate the Torture Act."

Yet in circular defense-counsel reasoning which is utterly incomprehensible to this layman, Lederman has also argued "that Bush officials can’t be prosecuted, because they were following [the Justice Department's Office of Legal Counsel's] formal advice."

Say what? Wasn't the Justice Department's Office of Legal Counsel merely conveniently inventing memos that the White House and A.G. were demanding? -- in the same way the CIA produced pleasing "evidence" of Iraq's intolerable skulduggery?

But we're likely to read no official reexamination of transcendent logic questions like that, since The Word has been passed from above: Ye shall not prosecute.

Barack Obama is only human (lest we forget) and because of that he'll make many mistakes. But this one is an avoidable lulu, a political high-wire balancing act of profound shortsightedness, a tragic miscalculation of inevitable perils.

Accountability -- the "facts" point to the highest crimes imaginable, which left unprosecuted will, to an absolute historical certainty, guarantee their official repetition.

Hence accountability isn't about revenge, Mr. Obama. It's about national self-preservation, not to mention a few national traits that I hope we haven't lastingly subsumed, such as upholding honor and integrity and simple human decency.