Back in the day...

Before I record my thoughts on the presidential inauguration here, which I will do shortly, I want to express my appreciation for President John Q. Adams, the sixth man to hold that office. He chose not to be sworn in on a bible but instead on a federal law book. He was a devout Unitarian, a very rare bird in today's world. But he thought that it was inappropriate to use the bible when he took his oath because that would constitute a violation of the separation of church and state.

He was, after all, pledging to defend and uphold the Constitution and the laws of the land, not the bible. The episode also demonstrates that the early presidents did have an appreciation of the importance of a secular government. Obama mentions non-believers in his inaugural address today, and that might bode well for his treatment of church-state issues. Maybe not, though. I'll keep my eyes open.

Well, in that case...

William Kristol's reliably horrible column in today's New York Times offers a retrospective of Bush's presidency and a reflection on what we can expect from Barack Obama. Besides praising Bush's unwavering support for Israel, Kristol insists that George Bush won the Iraq War for us, yet again declining to define victory. The most painful thing to read in the entire column is Kristol's commentary on the costs of our two recent wars. This is his attempt to feel for the humanity of George W.:

Last Wednesday afternoon, in the midst of all the other activities of the final week of an administration, Bush had 40 or so families of fallen soldiers to the White House. The staff had set aside up to two hours. Bush, a man who normally keeps to schedule, spent over four hours meeting in small groups with the family members of those who had fallen in battle.

Poor President Bush is so busy packing his bags to get the fuck out, but he still found the time to spend two extra hours with the grieving parents and widows of the Iraq War. Is this supposed to be some modicum of atonement for all the death and suffering caused in this unnecessary war? Is this visit supposed to convince us all that we're actually better off for having gone into Iraq? If so, it is woefully inadequate.

Kristol warns the incoming president about the burdens and costs incumbent on a war president, but he doesn't convey that all of those hardships befall Obama solely because of his predecessor's ineptitude. Despite the efforts of Kristol and a team of other revisionists, I can't imagine that history will be anything other than spectacularly harsh to President Bush.

We need a special prosecutor

Barack Obama's cabinet choices have begun confirmation hearings before the Senate, and aside from their personal qualifications, there is a lot of well-deserved attention being paid to how they plan to solve the myriad problems they are poised to inherit from the current administration. The main cabinet official I'm concerned about is Attorney General-designate Eric Holder. I'm concerned about what happens at the State Department, the Treasury, the Pentagon, and so forth, but Justice in on top of my list. I take that position because the Justice Department has the greatest potential, in my mind, to demonstrate that the United States has repudiated the Bush administration and its criminal modus operandi. Tim Geithner, Obama's appointee for Treasury Secretary, is the protégé of President Clinton's highly business-friendly Treasury Secretaries; Hillary Clinton is more hawkish than I'd like our diplomats to be; Robert Gates is being kept of as Secretary of Defense from the Bush administration. All three of those appointees are somewhat disappointing insofar as they are less-than-total breaks from the current administration's methods. There's no question that Eric Holder will be a drastic departure from the John Ashcroft/Alberto Gonzalez scheme at Justice. What I am less sure about is whether Holder will be aggressive in pressing criminal charges against former Bush administration members. There has been discussion of an extensive examination of President Bush's signing statements, in which he explains how he will interpret and sometimes blatantly contradict laws passed by Congress, as well as the dubious legal theories practiced by the Gonzalez and Ashcroft Justice Departments. I get the sense that Obama's Justice Department will overturn many of the Bush/Ashcroft/Gonzalez abuses of power, but decline to press criminal charges against any of the officials involved in unlawful behavior.

Signing statements represent the most widespread dereliction of duty by the Bush administration, but there are some specific abuses that also merit investigation. No-bid contracts and other sweetheart deals for contractors in Iraq and Afghanistan have led to a multi-billion-dollar swindle of American taxpayers' dollars. The most prominent war profiteers have been Halliburton and Bechtel; they and anyone else who have been involved in ripping off the public need to be reviewed for criminal liability.

More specific to the Bush administration, the Justice Department should examine Vice President Cheney's involvement in selling the Iraq War to the public. There have been numerous reports that Cheney exerted undue influence on intelligence agents to manufacture the case he wanted for going to war. Whether or not he can be prosecuted for this activity, it deserves to be brought to light and entered into official records. Additionally, Cheney admitted in an interview last month that he personally approved the waterboarding of Khalid Sheik Mohammad, a terrorist mastermind. Since waterboarding has long been prosecuted as a war crime, this admission seems to build a rock-solid case against Cheney. This cries out for prosecution.

President-elect Obama has downplayed the possibility of such prosecutions, telling ABC "my orientation’s going to be to move forward" rather than to focus on the past. There is no doubt that the new administration has a variety of crises to deal with, and Obama's attention will necessarily be divided between them. But I don't want Obama's time or energy to be devoted to prosecuting the previous administration. He is a partisan, and these prosecutions must be non-political. The politicization of Justice Department business is one of the more obviously criminal abuses of the Bush administration, in fact. But we need a special prosecutor, a non-political appointee who will conduct a legitimate criminal investigation rather than a partisan witch-hunt.

I'm looking forward here as well. I'm worried about the precedents we are setting for posterity. If no effort is made to hold the Bush administration accountable for its crimes, we will be subject to more lawless behavior in the future. A blatantly partisan investigation, even if it produced convictions, would only protect future wrongdoing by creating a negative perception of such prosecutions.

To my knowledge, such an effort is unprecedented. I have never read of any attempt by one administration to investigate crimes committed by an earlier administration. There have been contemporary investigations and impeachments by Congress, but I am fairly sure no president has ever done what I'm calling for here. I think it is incumbent upon us at this point to call for investigations because the level of criminal behavior under the Bush administration has been unprecedented. We need to show that we have a low tolerance for criminal behavior, preferably a lower tolerance than Americans in years past. We only get one chance to do this right, and we owe it to future Americans to try our hardest. That would be change we can believe in; anything less would be a betrayal of the spirit of Obama's campaign.

For Posterity

One thing that has struck me about Thomas Paine's writing is how often he appeals to posterity. Frequently he argues that the descendants of his generation deserve better than the status quo would bequeath them. He muses about what future Americans will think of the Loyalist faction and the institution of slavery. One of Pain's primary arguments against monarchy is the idea that "virtue is not hereditary." Even if a king could make a convincing claim to be favored by God and ordained as ruler for life, Paine contends, there is no reason that man should be succeeded by his own son.

Paine saw the Revolution as an unprecedented opportunity, a chance to create something that had never existed in human history. He wanted his generation to stand up and assume self-governance. They had the chance to do so, he wrote, and they owed it to future generations to create a legacy they could be proud of. Creating an independent republic would be a monumental achievement in the course of human events, not merely politically but also in terms of the prosperity America might attain without the burden of British colonial control.

At this juncture, we ought to adopt Paine's stance toward the future. America is in a unique position in terms of its own history and in international politics. We have at least a few more years as the uncontested global superpower, and we should use those years to lead. By that I mean abandoning our atrocious adventure 'spreading democracy' around the world and taking initiative on environmental and social policy. The Bush administration has embarrassed us in a lot of ways, not least by sleeping on the job as the global economy collapsed. There's a long list of things the new administration has to fix, from ending torture to restoring oversight of the economy. Hopefully when they act, they will do so with the same sense of urgency and obligation to posterity that Paine had.

Change, and so forth

Having finished The Conscience of a Liberal, about which, as it turns out, I didn't have a lot to say, I have started reading a collection of writings by Thomas Paine. This is a really interesting read, not least because the text preserves the irregular typography used in Paine's day. According to the book's introduction, Paine was the first vocal abolitionist in the United States. I know that later on he has some unfriendly comments about organized religion, which I look forward to. Currently I'm making my way through Common Sense, in which Paine makes some good points about the British system of government.

"I draw my idea of the form of government from a principle in nature which no art can overturn, viz. that the more simple any thing is, the less liable it is to be disordered, and the easier repaired when disordered; and with this maxim in view I offer a few remarks and the so much boasted constitution of England. That it was noble for the dark and slavish times in which it was erected, is granted. When the world was overrun with tyranny the least remove therefrom was a glorious rescue. But that it is imperfect, subject to convulsion, and incapable of producing what it seems to promise, is easily demonstrated."

You could say substantially the same thing about the U.S. Constitution today. It was a great improvement over the political system under which the founders had lived in colonial days, but after 220 years, there is room for substantial revision. After the appalling disregard for the Constitution on display during the George Bush's terms in office, now is as good a time as any to improve and modernize our system. The mantra in the election last year was 'change,' and though it's not clear what most people used to fill in that vague campaign slogan, to me it meant making the government more transparent and accountable.

I think we need not merely checks and balances but a strong and independent oversight mechanism in all areas of government. Paul Krugman cited the Works Progress Administration, which despite its reputation as a make-work boondoggle is known to historians as one of the least corrupt government initiatives in national history. If the Constitution had strict disclosure requirements and established ombudsmen in all three branches of government, it could restore public trust.

While we're modifying the Constitution, we should add an explicit protection of the right to privacy. The Supreme Court's jurisprudence on privacy issues is convoluted, in part because there is no language in the Constitution describing the extent of a citizen's right to privacy. The Court relies on the wording of the Fourth and Fifth Amendments and the notion of unenumerated rights protected in the Ninth Amendment to inform its understanding of privacy. We've waited too long in adding some definitive language to the Constitution. The men who wrote the Constitution put in an amendment mechanism for a reason, and we should take advantage of that.