Are War Crimes Prosecutions Possible In 2009?

There is a debate going on over at TPM Cafe on Jane Mayer's The Dark Side. Here's Mayer:

I wanted to start by bringing up the unmentionable question in the current presidential campaign, where both candidates are avowedly against the Bush Administration's embrace of torture and lesser cruelties in the "war-on-terror." While both McCain and Obama have spoken out against torture, neither has spelled out what he plans to do about holding Bush Administration officials accountable who may have committed or authorized crimes.

Understandably, this is a toxic subject, reeking of political payback. But I have personally interviewed CIA officers who have said they refused to partake in the "enhanced interrogation" program because they feared that eventually it would lead to criminal charges. They had seen this happen before, and wanted nothing to do with it, even if it meant in some instances, leaving the CIA. The threat of prosecution clearly acted as a deterrent. My question is what happens if there is no accountability for America's first program of state-authorized torture? Does it send a green light to torture again when the next attack takes place? Is it an invitation to other forms of lawlessness by the U.S. Government? But, if top officials of the Bush Administration who were acting in what they believed to be the best interests of the country's security, are now prosecuted, is that just? Will the public support it? Particularly if Obama is elected, wont this become exhibit A that the Democrats are soft on terrorism, and members of the "Blame-America-First" Club?

Hitchens, Spencer Ackerman, Emily Bazelon, and Scott Horton have all weighed in. I see the benefits of a Truth and Reconciliation Commission, on the lines of Chile or South Africa, after a government has committed war crimes, torture of citizens and non-citizens and lawlessness. The point of such a commission is that it makes it easier to get at the whole truth, along the lines of the 9/11 Commission. But I am very reluctant to let Bush and Cheney off the moral and legal hook. At the very least, they certainly need to be cordoned off from the usual respect accorded to former presidents and vice-presidents. And, personally, as a believer in the rule of law, I want them put on trial. Alas, Obama is too conciliatory and unifying a figure to do that. And McCain is implicated after 2006.