"This chapter is over."

Peggy Noonan--lately of "just keep walking" fame--lays out the case for not prosecuting Bush war crimes:

Mr. Obama has had great and understandable difficulty in balancing competing claims regarding how to treat government information on prisoner abuse. The White House debated, decided to release Bush-era memos, then said they wouldn't allow anyone to be prosecuted, then said maybe they would. It was flat-footed, confusing. The only impressive Obama we saw on the question this week was the one described by "a senior White House official" in the Washington Post. He or she was quoted saying, of the internal administration debates, that the president was concerned that a 9/11-style commission "would ratchet the whole thing up," and "His whole thing is: I banned all this. This chapter is over. What we don't need now is to become a sort of feeding frenzy where we go back and relitigate this."

This misses the point. Of course, it's good that the Bush era of secret executive laws and illegal torture is over--but there remains no good reason to believe that such a chapter couldn't happen again. That is the whole purpose of investigating and prosecuting these crimes, beyond achieving simple justice: it would set a precedent that circumventing the Constitution and violating important US laws prohibiting torture results in going to jail. Obama can ban things and end chapters all he wants, but it's not going to stop a future President from "going to the dark side".

Moreover, and probably more importantly: the decision of whether to prosecute war crimes shouldn't even be a political decision, and certainly not a decision made by the President. The Bush years has acclimated everyone so much to the idea of a politicized, non-independent Department of Justice that we forget that all this is Eric Holder's call, not Obama's--and that it is, in fact, inappropriate for Obama to even weigh in with his opinion as forcefully as he has.

PS: As a sort of meta-comment on all this, an interesting thing to consider is this: suppose that Obama's intention actually is to prosecute war crimes to the full extent of the law. What would a good strategy be? Certainly, it would be to appear to be reluctant or even opposed to prosecuting them, so as to avoid giving the appearance of partisan retribution. Then Obama can stand aside as the process grinds forward, sympathetically throwing up his hands and saying "what can I do? The DoJ is independent and apolitical." This would give the whole process maximum legitimacy.

So my point is, even as I criticize Obama for his position on this issue, I also acknowledge that his actions underdetermine his true intent, and we will just have to see how things unfold--and keep pushing for prosecutions.