Prosecuting the Bushies: The Al Capone Approach. Over the last few days, there's considerable discussion about whether Bush administration officials should be prosecuted for crimes against humanity? My basic instincts are with what Attorney General Michael Mukasey calls the "relentless," "hostile," and "unforgiving" faction that advocates punishment. Illegal wiretapping, torture, and extraordinary rendition are not unlike treason in that they strike at the core of our country's existence as a democratic republic. The Bush administration officials involved in authorizing, justifying, and executing these policies should all be held accountable for these extremely serious crimes. The investigations into these crimes should be handled by Congress, the Justice Department, and some kind of extraordinary commission or investigative body.

BUT THERE'S ALSO THE REAL WORLD. The problem is that the Obama administration has no interest in pursuing prosecutions for criminal behavior in the Bush administration. It's not too hard to see their point. Prosecuting Bush administration officials for war crimes would seem like a partisan witch hunt to the Republicans and would end any chance for bi-partisan cooperation on addressing the current financial meltdown, ending the war in Iraq, adopting a system of university health care insurance, and developing an energy policy. It should be added that the bitter antagonisms stimulated by such prosecutions would probably detract from Obama's overall efforts to get his policies enacted and create difficult political problems for the Obama administration. I doubt the United States is capable of putting Dick Cheney in jail and delivering on health care reform at the same time. Most people rightly think that health care reform and energy policy are more important and would look sceptically on the Obama administration if they pursued the prosecution of Bush figures at the expense of important domestic political initiatives. Prosecuting Bush political figures might ultimately make it more likely that a Republican would be elected president in 2012 or 2016 and bring the torturers back into office.

THE AL CAPONE PERSPECTIVE. Three alternatives for dealing with Bush administration crimes against humanity are in the air. Option No. 1 is to have the Justice Department prosecute those suspected of criminal acts. The Obama people have already let it be known that they are uninterested in this. Option No. 2. is set up a Truth and Reconciliation Commission along the South African model to bring all the information out into the public. The Obama people are interested in this option and I can agree with it if the Commission has an office of investigating agent with full legal powers. Option No. 3 is to hold Congressional hearings to undertake such investigations.

The reason I can support Options 2 and 3 is that these investigatory bodies become avenues for prosecutions if Bush administration officials either refuse to answer questions or fail to tell the truth to authorities. Personally, I'd like to see Patrick Fitzgerald (of prosecuting Scooter Libby fame) as the investigating agent for any Truth and Reconciliation Commission. If someone like Dick Cheney refused to testify or lied to the Commission, they could then be prosecuted and sentenced to prison for perjury or failure to cooperate. Various congressional committees could use their authority to have people prosecuted for "contempt of Congress" and perjury to the same effect.

Al Capone murdered lots of people but ended up going to jail for tax evasion. I'd like to see Bush administration officials go to jail for their crimes but wouldn't mind if Dick Cheney ended up in a prison jumpsuit for committing perjury either.