Over at Mother Jones Jonathan Stein predicts that the first split between Obama and Congress will be over the whether or not to investigate the previous administrations actions. He predicts that that Obama will follow the precedent of previous presidents and not push for or allow any formal investigations of his predecessor. Although Obama has previously stated that he would authorize a fact finding inquiry:
"If crimes have been committed, they should be investigated," he said. But he quickly added, "I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we've got too many problems to solve."However if recent speculation of Bush granting a blanket pardon to all individuals involved with torturing detainees proves correct the incoming administrations hands would be tied when it came to prosecuting anyone stateside. That would mean that anyone found guilty would have to be tried by the International Criminal Court. Which as weird as it may seem might actually be the best route to go if the upcoming Obama administration is serious about rebuilding America's image abroad.
As for whether or not we should prosecute members of the (soon to be) former administration I think the answer is pretty clear, "Absolutely." I am not alone in this line of thought. Glen Greenwald of Salon (who I disagree with 90% of the time) is in agreement with Daniel Larison of American Conservative magazine on this (which may be a sign of the apocalypse).
Larison:
Glenn Greenwald has an important post rejecting the claim that holding lawbreakers from this administration accountable is a kind of partisan attack. Leave aside for the moment that a significant number of voters who elected the new President probably chose him precisely to have this kind of accountability, which would mean that part of the reform of our government that many Obama voters expect entails nothing less than investigating and prosecuting officials who committed crimes. Instead, let’s simply consider what a system governed by the rule of law would require. It would require that those suspected of abuses of power, corruption or the commission of crimes under the color of authority be investigated and, if the evidence merited it, prosecuted.If you have doubts as whether or or not we should pursue such a course against this administration I have a challenge for you. First either read every source I've linked to on the subject or watch the documentary Torturing Democracy (essentially a time line on this issue using documents obtained under the freedom of info act, leaked memos and transcripts, and interviews with former Bush appointees and military officers) and then ask yourself "If it were Bill Clinton or Obama that were accused would I feel differently?" When any administration to commits a crime and we turn a blind eye we give license to future administrations to perform the same illegal acts.
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If high officials have broken the law, the day when they are brought to justice should be considered a very good day indeed. Is it regrettable that these officials created this situation? Of course. What we should never regret or lament is the successul revival of the rule of law that holding such officials accountable would represent.
One could also argue that if Obama fails to follow through on his word on this matter then he is tacitly reserving the privilege for those same excesses for his own administration. How comfortable are you with that thought?
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