Does Obama have to prosecute?

I’ve been thinking a lot about legal matters recently. Now that President Obama (that does sound nice, doesn’t it?) is in office, sworn in (twice, for good measure) and issuing all kinds of executive orders and policy statements (whither K street? or more appropriately, wither, K street), everyone is coming around to the same question.

Will he seek prosecutions of Bush administration officials (including, possibly, Dubya and Cheney) for war crimes?

We’re getting more revelations by the day, now that the old gang is out of power and less capable of retribution. We’ve learned that the NSA was spying on all American conversations, all 300 million of us, on our phones, text messages, email and everything else. The NSA was listening to everything, and flagging what they thought merited closer examination. We’ve heard Bush administration officials admit to using the “T” word, torture. And even as Obama has ordered the shutdown of Guantanamo, we’ve all had to confront what went on there and why so many of the detainees can’t be tried under American law because any evidence against them is inadmissible. Attorney General nominee Eric Holder said definitively in his confirmation hearing that waterboarding was torture, and now Republican senators are delaying the nomination hoping to get assurances that he didn’t really mean it, or at least won’t prosecute Bush and Cheney, who have admitted ordering torture.

And yet, Obama seems very careful to reassure Republicans that no one is coming after them. He wants to put the recriminations of the past behind him and move forward leading a united American people. It’s a noble thought, and one I happen to share with him. I’m willing, personally, to let the transgressions of the Bush administration go if it means healing the nation and moving forward. But is it possible?

There’s a very real chance that Obama and Holder will not have a choice. In some interpretations of the law, now that Cheney has admitted ordering and authorizing these tactics in public, Holder may be required by law to charge him. We are also bound by treaties to charge and try war criminals. The Bush administration was all too ready to ignore laws they found inconvenient, but the new administration is supposed to be about changing things, right?

Obama may find himself in a catch-22 even he can’t think of a way out of. He wants to unite the country and end the partisan divisiveness that has defined American politics for the last three decades. And if he charges the former president and vice-president (along with their secretary of state, two or three attorneys general and a former secretary of defense) with war crimes and brings them to trial, he loses all hope of ever getting Republicans to work with him on anything. It would be more polarizing than anything the Bush administration did. And yet, if he’s required by law to do so and chooses to ignore this legal responsibility, how has he changed anything at all?