The Washington Post Editorial board surprised me. This editorial unequivocally states that the US tortured and that this was a crime. They advocate an investigation by an independent commission. They hedge on whether there should be prosecutions leaning against, but admitting that they don't know all the facts which the proposed commission will discover.
All in all pretty solid given the fact that many pundits still argue against releasing the OLC pro torture memos. I was reluctant to read the editorial as I feared it would make me dangerously angry (I only read it after reading a non angry reference at Glenn Greenwald's).
I'm sure there was heated debate among the board. The editorial clearly starts with a draft editorial against investigations which I take to be, in effect, the minority report. The editorial is, of course, balanced, but it is balanced between Obama and critics who want prosecution.
Needless to say, the editorial contains utter nonsense which was required for balance. They are
"Should Bill Clinton, Sandy Berger and their team have been held criminally or civilly liable for dereliction of duty 3,000 people died in the Sept. 11, 2001, attacks, given that they knowingly allowed Osama bin Laden to flee Sudan for sanctuary in Afghanistan?"
This is an old canard. Bin Laden was no more arrestable when he was in the Sudan than when he was in Afganistan. The US military was asked what it would take to arrest him, and, as always, they insisted on overwhelming force. There was no material change when
Furthermore the claim that a policy decision makes one "criminally or civilly liable for dereliction of duty" would be criminalization of the policy debate. It has no connection to actual law on deriliction of duty. The sentence is an absurd straw man standing on a plainly false historical claim.
The other absurd claim made for balance is "The answer does not lie with those congressional Democrats who are eager to put the entire Bush administration on trial. " Said congressional Democrats are not named for the simple reason that they don't exist. As far as I know, no one is proposing such a thing (and I live in the fever swamps of the left blogosphere). Such an act would be clearly unconstitutional as it violates the 4th amendment.
The 2 sentences aren't even a serious effort to set up a straw man. I am sure no member of the Editorial Board would be willing to defend them in debate.
OK the first is a question and it is not asserted that anyone thinks the answer is yes. I'm sure, none of them would be willing to argue that the cases are analogous, and, indeed the editorial goes on to argue that they are not. However, the premise of the rhetorical question is plainly false. The post 9/11 investigations made it clear that the Clinton administration was, if anything, less derilict than the Bush administration. To the board it was necessary to find something to say against Clinton to balance their assertion that Bush is a criminal. The facts of that other case can't get in the way.
The second is a plainly false assertion. It is very clear and specific. It is totally false.
update: extremely embarrassing typos corrected thanks to Vance Maverick