Brian Tamanaha at Balkinization says what I think we probably all know: in order to uphold the rule of law, the Bush administration must be pursued for its war crimes. It sets a dangerous legal, moral, and political precedent to do otherwise and, as my friend Darius Rejali has said, "few things predict future torture as much as past impunity." And Tamanaha says that to not pursue criminal investigations is political.
Tamanaha is writing mostly to other lawyers and thus assumes the rule-of-law justification. Clearly, a political approach to investigations would itself be a legal and moral disaster and Tamanaha is correct in saying that the prosecutor ought to be viewed by all as politically neutral. This may seem an obvious point, but it bears reminding that separating politics from a genuine effort at upholding the universal application of rules and laws is hardly straightforward. Appeal to rule of law is an attempt to surmount this problem. Rule of law in this case at least is inherent to democracy in the sense that it embodies the claim that no one is above the law, including governing authorities and institutions. Again, this claim might seem obvious, but appeal to rule of law is a crucial element in the effort to rein in the Bush administration's claimed state of exception, that extra-legal fringe through which the administration operated.