It is clear that in the last eight years, our country has gone on the wrong track. One of the ways in which it has worst offended is in our system of Justice. After all, Justice is one of the things we hold dearest to our hearts: The Statue of Liberty, the Constitution, the Declaration of Independence; if you can tie all of these (and other) American governmental bedrocks together, it's under the banner of justice.
War crimes have happened. A close examination of the facts leading up to the Abu Ghirab scandal, the extraordinary rendition scandal, the CIA "black sites" scandal, and other scandals besides--as well as the official line (now abandoned) within the White House that we operate outside of the Geneva Conventions all culminate to make that point.
How do we address justice? That debate is raging right now.
Andrew Sullivan is correct when he says that any attempt to prosecute former members of the Bush Administration will have severe blowback. It's as though Newt Gingrich, by pressing for impeachment of Clinton, bought President Bush all the amnesty he needs. Almost every single member of the Bush Administration has been liked to one crime or another, and as President Bush likes to say: the members of his Administration are ultimately his responsibility. They serve at the pleasure of the President. So why the blank check?
The answer is that our own political system is too tied up in itself to effectively prosecute itself. If Barack Obama sets up a satisfactory Special Prosecutor, like Prosecuter Fitzgerald who handled the Scooter Libby trial, then perhaps some sort of justice can be approximated. But it is highly unlikely that this will really get to the roots of the problem: as in the Scooter Libby trial, the ax-men may get caught, but the people who enabled them will go scot free.
But it cannot be acceptible that the people who authorized torture are allowed to go free. It cannot be acceptible that the callous dismissal of human lives be allowed to go unpunished. It cannot be acceptible that the trammeling over the US Constitution be ignored. Because if we don't address these ills, it will be worse than a lost opportunity of justice: we will forever communicate that these things are acceptible. Suppose the next President authorizes torture for foreign civillians on our custody, or secretly sets up renditions within the United States. Will they be able to argue that they are merely following a precedent set by President George W. Bush? One of the arguments I have heard in Bush's defense is to cite the losses of civil liberties in previous administrations--as though whatever we have done now pales in comparison to those heady days. But it does not.
The challenge for the incoming president will be to restore the image of Justice in the United States, and in the world.