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Investigate Now, Pardon LaterIt's not quite time to let bygones be bygones.

By Dahlia LithwickPosted Thursday, July 24, 2008, at 4:48 PM ET

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Emily Bazelon, Kara Hadge, Dahlia Lithwick, and Chris Wilson suggested crimes and misdemeanors for which the Bush administration could face prosecution. Jacob Leibenluft explained that the president has the power to pardon people pre-emptively, before they've even been charged with a crime. Dahlia Lithwick pointed out the failures of the war crime tribunals at Guantanamo Bay. Phillip Carter criticized the Defense Department for skirting the law by writing a memo on torture. Bonnie Goldstein posted John Yoo's March 2003 torture memo.

At the other end of the spectrum are the suggestions of an amnesty deal for everyone who had any sort of finger in the torture pie. James Ross, legal and policy director for Human Rights Watch, cautioned in Salon that "in his administration's waning days Bush will issue a preemptive pardon for all those who have or may have committed federal crimes relating to detainee interrogations. He might even invoke his father's Orwellian praise of the Iran-Contra defendants, who were pardoned because of their 'patriotism' and 'long and distinguished record of service to the country.' " In Newsweek last week, my colleague Stuart Taylor wrote that the president "ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers."

Taylor would do away with any possibility of criminal prosecution in favor of a truth commission. Nicholas Kristof also seeks a "truth and reconciliation" commission, modeled after the South African response to apartheid. Such a commission would "lead a process of soul searching and national cleansing."

I don't know about you, but sometimes I believe there's nothing quite as cleansing to the soul as an indictment. I am less sanguine than Taylor that a promise of sweeping prospective immunity for all Bush administration wrongdoers would lead to a great outpouring of candor and revelations. For one thing, the Bush administration has already sought to immunize itself for every kind of lawbreaking—often within hours of violating the law—and yet still it has classified or claimed privileged in relation to almost every aspect of the war on terror under some shape-shifting theory of state secrecy or executive privilege. To Taylor's and Kristof's suggestions that truth will out if some formal bipartisan body with subpoena power is empanelled, I'd respond that we have such a body. It's called Congress. And its efforts to investigate Bush administration lawbreaking are already being dismissed as vengeful witch hunts.

That, then, is the nut of the problem. Defenders of lawbreakers in the highest reaches of the Bush administration now insist that anyone seeking accountability is a bully and that any effort to clarify what happened or how is animated by partisan bloodlust. Attorney General Michael Mukasey has elevated this argument to an art form. The man who once testified that John Yoo's torture memo was "worse than a sin" has just announced that he would neither investigate nor prosecute the torture architects because they acted in "good faith." Mukasey in speeches not only blames overcautious lawyers for intelligence failures that led to 9/11, but scolds that the decision-makers who authorized forced nakedness and water-boarding "were often working in an atmosphere of almost unimaginable pressure, without the academic luxury of endless time for debate." These are the heroes. Those who seek accountability for their decisions are "hostile and unforgiving." If Mukasey showed as much compassion for everyone who sits in jail today for decisions made quickly and under pressure, the prison crowding problem would be over tomorrow. So very few of us who smoke crack, steal cars, or shoot unfaithful spouses do so after sober and thoughtful reflection.

I am not arguing for instant war crimes prosecutions or for criminal indictments. The vital lesson of the past seven years is that hasty legal judgments are often bad ones and that criminal cases are difficult to build for a reason; questions of intent and knowledge really do matter more than conclusory labels. So this time, let's allow those legal processes to work.

On the other hand, we need careful investigation before we take the possibility of criminal prosecution off the table. To immunize or pardon everyone from John Yoo to David Addington to Monica Goodling, before we've seen critical classified memos or heard the conclusions on several fronts of the Department of Justice inspector general, is to remedy the reckless and dangerous decisions of the past with more dangerous recklessness. Criminal investigations aren't just about revenge, whatever Mukasey may think. They are a means of obtaining information and ultimately truth.

I also want to suggest that the wrong way to talk about legal accountability for the Bush administration is to cast it as something America owes the rest of the world. Sure, it's critically important to show our allies and enemies alike that the rule of law still means something here. But it is far more important to have this legal reckoning for America. Not because of some deranged liberal bloodlust, but because we need to understand that there just aren't two sets of law in America, one of which—like the good linen—we keep for special occasions. There isn't one set of laws for when we're panicky and reckless and another for tranquil times. There isn't one set of laws to punish the soldiers in the field and another for the commanders at the top. It's not just the president who seems to have forgotten this lesson in the last seven years. Most of us have. Worse yet, we've forgotten why it matters. We owe it to ourselves to begin to remember.