During his confirmation hearings in January, Attorney General Eric Holder declared "waterboarding is torture." But in language eerily reminiscent of the administration Barack Obama was to replace, Holder assured Republican advocates of torture, "we don't want to criminalize policy differences that might exist" with the outgoing Bush White House. Now with word that the Justice Department will not prosecute CIA personnel who used the brutal interrogation techniques he immediately banned upon taking office, President Obama is sounding like the man he replaced. After all, whether purging prosecutors, outing covert CIA operatives, or defending Tom Delay, President Bush and his Republican allies brushed off their lawbreaking as the "criminalization of politics."
To be sure, the four memos released in the ACLU case today gave lie to the claims under oath of Attorneys General Michael Mukasey and Alberto Gonzales that Senators' questions regarding torture were "hypothetical." (As I noted in October 2007, Gonzales during his February 2005 confirmations almost certainly perjured himself when he claimed the withdrawal of the infamous August 2002 Bybee memo meant "this administration does not engage in torture and will not condone torture.") The guidance OLC's Stephen Bradbury gave interrogators in May 2005 ("Interrogators may combine water dousing with other techniques, such as stress positions, wall standing, the insult slap, or the abdominal") may have fallen short of blessing the grotesque Yoo/Bybee standard of "organ failure, impairment of bodily function, or even death," but it violated U.S. and international law just the same.
But while the memos authorizing these war crimes have seen the light of day, those who ordered and perpetrated them apparently will not. While Attorney General Holder announced, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," President Obama seemed to back off legal action against the Bush administration architects of war crimes:

"In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution...
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."

That must have been music to the ears of George W. Bush, Dick Cheney, Donald Rumsfeld, Alberto Gonzales, John Yoo, Jay Bybee, William Haynes and their conservative water carriers. After all, they've long agreed with Eric Holder about not criminalizing politics.
Ironically, it was President Bush's father who introduced the criminalization of politics defense into the Republican strategic lexicon. In justifying his Iran-Contra pardons, President George H.W. Bush used the talking point that would come to define the discourse of his son's 21st century amen corner. Much like his son's defenders, Bush 41 sought to recast rampant Republican White House criminality as mere political disagreement:

Mr. Bush said today that the Walsh prosecution reflected "a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences."

The "criminalizing politics" canard has been part of the Republican scandal survival kit ever since.
Take, for example, the imbroglio surrounding the politically motivated firings of U.S attorneys in 2006. On PBS Newhour in May 2007, Republican California Congressman Dan Lundgren was only too happy to offer the criminalization of politics ruse for Monica Goodling and Alberto Gonzales alike. Just moments after acknowledging Goodling's admission of violating civil rules and Hatch Act prohibitions ("she did admit that she made mistakes in that regard"), Lundgren returned the script:

"Let me just say this -- and I think it's an important point -- there is too much of a tendency in this environment to try and criminalize political disputes. That's been the effort here. They have found no basis for criminality, so the suggestion is now a vote of no confidence. Who knows what is next?"

But it was Rep. Mike Pence (R-IN) who beat Lundgren to the punch, defending Goodling in the opening moments of her testimony. Pence, who famously compared his March visit to a Baghdad market to shopping in his home state of Indiana, trotted out the tired GOP talking point for her:

"I'm listening very intently. I'm studying this case. And I want to explore this issue of illegal behavior with you. Because it seems to me so much of this -- and even something of what we've heard today in this otherwise cordial hearing -- is about the criminalization of politics. In a very real sense, it seems to be about the attempted criminalization of things that are vital to our constitutional system of government, namely the taking into consideration of politics in the appointment of political officials within the government."

Later that morning, of course, Monica Goodling admitted her own lawbreaking and suggested that Attorney General Gonzales may have obstructed justice in trying to coach her. Acknowledging that "I believe I crossed the line, but I didn't mean to", Goodling clarified for all why she sought immunity in the first place:

"I do acknowledge that I may have gone too far in asking political questions of applicants for career positions, and I may have taken inappropriate political considerations into account on some occasions, and I regret those mistakes."

(As it turned out, the DOJ's own inspector general later rejected Goodling's criminalization of politics maneuver.)
GonzoGate, however, is far from the first 21st century use of the "criminalizing politics" defense by Team GOP and its echo chamber. Consider the case of Tom Delay. As early as April 2005, a furious Delay declared of the ethic charges swirling around him, "Democrats have made clear that their only agenda is the politics of personal destruction and the criminalization of politics." Amazingly, that comment came before Delay's own October 2005 indictment in Texas for money laundering in association with his Texans for a Republican Majority (TRMPAC).
Unsurprisingly, the conservative echo chamber rushed to Delay's defense and magnified his talking point. Days after Delay's indictment by District Attorney Ronnie Earle, Robert Novak penned a column titled "Criminalizing Politics", concluding:

'Democrats are ecstatic. The criminalization of politics may work, even if the case against DeLay is as threadbare as it looks."

No discussion of Robert Novak and the Republican redefinition of GOP crime as everyday political disagreements could be complete without a look the outing of CIA agent Valerie Plame. While neither Karl Rove nor others were ever charged with the technical and narrowly defined offense of revealing the identity of Valerie Plame to Robert Novak and others, Cheney chief-of-staff Scooter Libby was convicted by jury on four counts of perjury and obstruction of justice. But for the familiar goose-steppers of the conservative ascendancy, Libby the felon too was a victim of the criminalization of politics.
The usual cavalcade of apologists for Republican law-breaking swarmed to Libby's defense. With his looming indictment in the fall of 2005, Texas Senator Kay Bailey Hutchison compared Libby to Martha Stewart, and offered a new variant of the Delay sound bite, the "perjury technicality." Hutchison said she hoped that:

"That if there is going to be an indictment that says something happened, that it is an indictment on a crime and not some perjury technicality where they couldn't indict on the crime and so they go to something just to show that their two years of investigation was not a waste of time and taxpayer dollars."

Hutchison, of course, had plenty of company in offering the criminalization of politics canard in the CIA leak case. On October 14, 2005, Bill Kristol complained, "I am worried about what happens to the administration if Rove is indicted," adding, "I think it's the criminalization of politics that's really gotten totally out of hand." In succeeding days, Kristol's Fox News colleagues Bill O'Reilly, Sean Hannity, Stuart Varney and Chris Wallace joined the chorus singing from the RNC's criminalization of politics hymnal. On October 24th, Kristol took to the pages of the Weekly Standard to denounce a supposed Democratic strategy of "criminalizing conservatives." When Libby was later convicted, the Wall Street Journal editorial page called for a pardon. The WSJ cited grave dangers if the Libby verdict were to stand: "perhaps the worst precedent would be normalizing the criminalization of policy differences."
The worst outcome, sadly, is the American people's acquiescence to Republican lawlessness by accepting the "criminalizing politics" gambit. While President Obama today suggested the possibility of future torture investigations ("I think we are moving a process forward here in the United States to understand what happened"), he nevertheless reiterated his vague refrain regarding the previous occupants of the White House:

"I'm a strong believer that it's important to look forward and not backwards."

But we have to look to the past because, after all, war crimes are forever. And while they may have been perpetrated by the minions of the Bush administration who were "just following orders," they were committed in the name of the United States of America.
UPDATE: ThinkProgress in a piece Friday suggested that despite Obama's immunity for CIA personnel, prosecution of senior Bushies may still be on the table. As the ACLU's lead counsel told GlennGreenwald, "I think it's a mistake to read the grant of immunity too broadly," addig, "I don't think that President Obama's statement should be taken as a sign that there's no chance that the architects of torture program will be prosecuted."