Article 8 of the Charter of Military Tribunals, which governed the conduct of the Nuremburg Trials after World War II, provides that:

"The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determine that justice so requires."

This is the principle which addresses the "pragmatic" aspect of how to prosecute governmental illegality when it starts at the top but is implemented through a chain of command down to the guy who was "just following orders". It is true that the guy who "just followed orders" might have made a moral decision to refuse to engage in the criminal act -- but if it is argued that pursuing high executive criminality should be foregone because that might require or implicate also convicting any large number of underlings who followed the orders, the principle of Article 8 can mitigate this. Indeed, from a "precedential" perspective, if society as a whole wants to deter the kind of governmental criminality we are talking about here, which rule has the greater likelihood of doing so: one which says nobody will be prosecuted because there are too many people involved, or one which emphasizes that rooting out those who order the criminality is more important than punishing those who carried out those orders? And which principle is more likely to encourage those foot soldiers to make the tough moral choice not to follow an immoral order: the knowledge that neither the superior nor the implementer will be prosecuted, or the hope that there will be repercussions to those who give such orders and mercy to those who followed them out of fear or trust?

This isn't always easy to apply, of course, and the concentration camp prison guard is the pivotal example of that. But if the choice is between prosecuting everyone and prosecuting no one, who believes that choosing to prosecute no one is the more likely to deter future lawlessness by the government? That's what is being advocated right now. It stinks.

There is nothing wrong with focusing upon the person giving the orders. This certainly may entail charging some of those who followed the orders. Sort out relative degrees of punishment when the facts are known and justice can be applied.

But simply "moving on" is abhorrent. A former prosecutor should know better than to suggest it.

This one is for Mr. Obama, the President-Elect. Ran on a platform of "change" as I recall.

Accepting the notion that it would be better to ignore Bush Administration criminality than it would be to address it falls within any concept of "change" how? Is it "change" because it would represent formal U.S. Government acceptance of the proposition that the rule of law is inapplicable to the government now?

I would address this concept to Congress but it's hard to fathom who there would even understand the question or why we might be asking them.

Iokannon: "NOB, you are a serial contrarian"

NOB: "No I'm not. No I'm not."

Once again, any credit must go to Monty Python. Sorry for the interruption. Oh, and since I'm already here, Impeach Bush.

This is an actual quote from an official statement issued by President George W. Bush in 2001:

"The transfer of Milosevic to the Hague is an unequivocal message to those persons who brought such tragedy and brutality to the Balkans that they will be held accountable for their crimes. Milosevic’s transfer further signals the commitment of the new leadership in Belgrade to turn Yugoslavia away from its tragic past and toward a brighter future as a full member of the community of European democracies."

This is part of what Glenn linked to in his first update here, but I just had to re-print this. Maybe Obama could write this on Bush's forehead with a Sharpie and deliver him to The Hague on January 21? Can somebody work this quote into the Inaugural Address?

This quote reminds me of nothing more than the classic Far Side cartoon of two cavemen holding bows and standing by a dead mammoth that has a teeny tiny arrow sticking out of its side, and one caveman says to the other "maybe we should write that spot down".

There are things that are too important to ignore. And if "letting bygones be bygones" was a morally acceptable basis for ignoring major, intentional, planned, systematic criminal activity, why bother even having laws? Those who glibly are asserting, accepting or expecting that the illegal actions of the Bush Administration are going to be ignored as "old news" deserve themselves to be subjected to the kinds of things the Bush Administration has been doing "in our name".

And when it suggested that it's fine to "move along" and ignore Bush's depravity, could somebody PLEASE quote Bush back in their faces? Could somebody PLEASE confront Bush with this quote at a press conference before he leaves office? Confront Dana Perino with it? Get it on the nightly news for America to see and hear?