One of the reasons why the investigation of former Bush administration lawyers will probably now cease – besides the merits of their cases and the clumsy partisanship of their would-be accusers – is the short-term precedent it would have established; e.g., would the present Justice Department lawyers like to be investigated by future Justice officials, say in 2013 under a conservative administration, on the grounds that some present individuals wrote or advised the president that it was perfectly legal — in a way it was not during, say, the Clinton administration — to target suspected terrorists and their families for air-borne assassination?
Some existential questions arise. It was illegal to execute a suspected terrorist by cruise missile in Afghanistan in the 1990s, but OK to do so in 2010 by a Predator? It was a criminal offense to water-board a confessed terrorist in captivity under the Bush administration, but not so under the Obama administration to execute a suspected one in the cross-hairs? Associated protocols like an open Guantanamo, renditions, and tribunals were all perhaps unconstitutional and proper targets of judicial inquiry between 2003-9, but suddenly not so in 2010?
I think all these investigations and inquiries, which were the stuff of the Obama swell during January to June 2009, will go the way of the KSM civilian trial in New York and the supposed one-year to shut down of Guantanamo — that is, they were “virtual” (cynically symbolic) policies to appease a left-wing base that was mildly “shocked” to discover that all the things candidate Obama had ritually damned to applause (wiretaps, Patriot Act, renditions, tribunals, Guantanamo, Iraq, Predators, etc.) a President Obama embraced and apparently found of utility.