Cass Sunstein, at Netroots Nation 2008 in Austin last July, opined that prosecuting Bush Administration officials for torture and other crimes would be wrong because it would "criminalize policy differences". Eric Holder then echoed the same phrase during his confirmation hearing in January. Writing at DailyKos, Kagro X responded to that and had a few things to say about how it actually "politicizes crime".

I’d like to extend that theme and come at it from a different angle.

First, there would be no need to "criminalize policy differences" with the Bush Administration if the policies themselves were not crimes. Torture is not a policy difference, it is a crime. Wiretapping without a warrant is not a policy difference, it is a crime. And so on, for extraordinary rendition, outing covert agents, wars of aggression and so forth.

But let’s look at one of the Bush Administration crime areas more closely. The Bush Department of Justice became a "legal hit-squad" where prosecutions were carried out based on political calculations. They even went so far as to fire US Attorneys who would not play along with this plan. They perhaps hit their apex in this process when they prosecuted Don Siegelman, the governor of Alabama. This was a true case of "criminalizing policy differences", as they chose to cook up false charges in order to remove him from office. There were no real crimes on which to prosecute Siegelman. This is a true miscarriage of justice and has led to a severe loss of public confidence in the Department of Justice.

To complete the inversion of logic here, now note that since there are indeed crimes that have been committed by the Bush Administration, when there is a call not to prosecute because Bush was the President and he and his minions were acting "for the good of the country", this is actually a call to inject a political consideration into the decision of whether to prosecute. This would completely throw out John Adams’ statement that we are "a nation of laws and not of men", because it means that the decision on whether to prosecute, in the face of clear evidence of criminal behavior, is based solely on who committed the crime. That is "politicizing crime" in the worst possible way.

President Obama, when pressed on this issue, after saying that he prefers to "get it right going forward", does finally get around to saying that no person is above the law. To prove that that is the case, a system for prosecuting Bush Administration officials must be put into place where prosecution depends only on whether a crime has been committed and those responsible can be identified.

If we allow the crimes to go unpunished, then we have inserted a political decision into a prosecution process that should be free of all political influence. A political decision not to prosecute a known crime is just as corrupt as a political decision to prosecute false charges. Attorney General Holder will not have left the Bush DOJ abuses behind until he undertakes prosecutions of the Bush crime spree. Our Department of Justice can only regain its stature as an independent enforcer of the law by prosecuting these crimes.