This ABC news story, indicating that senior Bush administration officials (including Dick Cheney, Condi Rice, Donald Rumsfeld, Colin Powell, John Ashcroft, and George Tenet) personally approved specific enhanced interrogation techniques to be used against al-Qaeda suspects, is sparking a bit of a debate about how a future Democratic administration should respond. Marc Ambinder notes that such an administration might be interested in investigating Bush officials for possible war crimes; Jack Balkin points out a number of reasons why that would never happen. Mark Tushnet suggests a possible approach:
There's a difference between "figuring out whether there's a case to be made" and instituting a prosecution. I've been pushing the idea of an internal Church Committee like report on what happened, leaving it to the public to decide whether it approves of what Bush et al. did. My fantasy is that there would be a section simply describing the principles of liability laid out in the Nuremberg lawyers' judgment--and let people draw their own conclusions about Yoo.
I think this course of action has much to recommend it. Prosecuting conduct that was approved by the Justice Department of a duly elected administration, even if such approval was later revoked, is rightly out of the question--it's absurd to expect individual CIA agents to judge for themselves what interrogation techniques are permitted by law. But a detailed report airing the Bush administration's dirty laundry, in addition to enabling the public to pass a final judgment on the matter, would also serve to weaken misguided Bush-era norms on questions of secrecy, executive privilege, and so forth. That's a worthy end in and of itself. On some level it's strange to think that the next president should deliberately set out to ratchet down the power of the White House relative to Congress (at least a little), but after Bush, it doesn't seem like such an outlandish proposition.
Update: Just to be clear, I'm not advocating that Democrats make "prosecute Bush's war crimes" a campaign issue (that would be suicidal), and even as a matter of law I'm suspicious of the idea. But the fact remains that the administration has engaged in conduct of rather dubious legality and a Democratic president should probably do something to distance him/herself from that conduct and make sure that it doesn't set a precedent for future administrations.