Truth, Crimes, Commissions and Hope

God, I do hope that David is right about this. If he isn't, and nothing is done....well....it won't be pretty in the months and years to come.

By David Swanson
April 2, 2009

Editor’s Note: There is some concern that the momentum for a serious inquiry into the Bush administration’s war crimes is waning, as Senate Judiciary Committee Chairman Patrick Leahy confided to a group of Vermonters on Monday.

But David Swanson of afterdowningstreet.org argues in this guest essay that there are reasons not to mourn the death of a “truth commission,” especially if it would only get in the way of more serious types of accountability, i.e. prosecutions:

Good news is being taken as bad. Vermont constituents of Sen. Patrick Leahy report that he's finding very little support for his proposed truth and reconciliation commission from Republicans or Democrats in the Senate. Numerous people have taken this as bad news and cause to despair. I disagree.

Here are 10 reasons why:

1. The idea was never reconciliation with Iraqis, Afghanis, Pakistanis, Palestinians, torture victims, spying victims, victims of political prosecutions, or anyone other than the commission members themselves. Real reconciliation is years away from even being comprehensible to, much less supported by, the U.S. Senate.

2. There are very useful things that Congress or an outside commission could do, but most of them have nothing to do with punishing or deterring crimes, or reconciling victims and abusers. The only thing that can deter future crimes of the sort that have been committed is criminal prosecution. Any commission begun before a special prosecutor is appointed would risk serving as a substitute for what is most needed, and risk having its requests and subpoenas ignored as Congress's have been for the past two years. But once a prosecutorial investigation is begun, Congress will be able to take up related issues without creating a substitute for prosecution and with better public understanding that there are advantages to complying with subpoenas and other legal obligations.

3. A commission dedicated to truth would have a hard time ignoring ongoing criminal investigations in Spain and Britain, and likely indictments there and elsewhere. The reconciliation would almost inevitably develop into opposition to international law, which is of course exactly the offense we most need to correct and deter, not encourage.

4. A nonpartisan commission would be a bipartisan commission, with half of the members named by each of the two parties into which our government is now more fundamentally divided than it is into three institutional branches. Both parties would favor a commission designed to cover up congressional complicity in crimes. And if there is some hope that a congressional committee might be motivated to restore constitutional powers to Congress, an outside commission would not be as likely to have that interest.

5. A commission unable to compel witnesses could be designed to bribe them with immunity for their crimes. But unless there are prosecutions and the serious threat of prosecutions, that immunity is not a valuable bribe. And the granting of immunity is not justified by the circumstances. Our justice system is not overrun by too many defendants to be processed. It is simply refusing to prosecute a small number of individuals against whom there is extremely powerful evidence and for whom trials could potentially be very, very swift.

6. While we will never have the complete "truth" about anything and should not encourage the false belief that we lack probable cause to prosecute, obtaining more information about crimes and abuses is certainly desirable. But more information is likely to be obtained by a criminal prosecution than anything else.  And more information is likely to quickly be made public by demanding the release of memos, e-mails, minutes, reports from the DOJ's Office of Professional Responsibility, from the CIA, from the Senate Armed Services Committee, etc., than from any hearing or panel or commission. If Congress wants the truth about the treatment of prisoners, it should demand their release and listen to them. If it wants whistleblowers to speak, it should legislate protections for them. If it wants new stories to break, it should bust the media monopolies.

7. The sort of discussion most needed from Congress is not a weak substitute for a criminal investigation, but rather a study of how to restore Constitutional powers to Congress that have been usurped by presidents. A committee or panel or commission could most profitably examine the treaty power, appointment power, pardon power, power of the purse, power of war, and power to legislate, signing statements, secret laws, secret agencies, secret budgets, state secrets claims, executive privilege claims, vice presidential powers, the power of impeachment, the power of subpoena, and the practice of inherent contempt. The most effective way to do this, and probably the only possible way to do it, would be with a House-only select committee. Not only is the Senate hopeless, but a proper list of democratizing reforms would include proposing the elimination of the Senate.

8. A public airing of the crimes and abuses, if it did not interfere with criminal proceedings, if it enforced (or persuaded the Justice Department to enforce) its demands, and if it was covered by the media would certainly be useful. It would be less useful, however, if it repeated the endless public airings of the past two years in hearings that have been largely ignored by the media, or if it refused to call the crimes crimes, or if it reinforced the loss by Congress of the power of subpoena. Again the best and probably the only possible way to make this happen would be with a House select committee, subsequent to the
beginning of a criminal investigation.

9.  Existing committees and subcommittees can also hold closed and open hearings without delay, and with the possible advantage of Democrats holding majorities over the Republicans on every committee, and some are planning to do so. Committees can, if they choose, reissue all of their subpoenas that were refused over the past two years. Enforcing those subpoenas, into which much thought and work was poured, would reveal more than any bipartisan commission would be likely to.

10.  A movement is rapidly and impressively building to demand a special prosecutor, to prosecute locally and abroad as well, and to legislate reforms through Congress. The State Secrets Protection Act, a resolution challenging an unconstitutional treaty with Iraq, a bill to restrict the abuse of National Security letters, and other good bills expected just after the April recess mark a trend in the necessary direction.  The possibility of impeaching torture memo author and now federal judge Jay Bybee is even under discussion, and the California Democratic Party will take the matter up in a resolution later this month. By impeaching Bybee, Congress could restore its primary power, the one that gives teeth to the others, and then nobody would be able to type fast enough to record all the truth and reconciliation that would start spilling forth.

David Swanson is the author of the upcoming book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union. He is co-founder of AfterDowningStreet.org.

Let The Sun Shine In......

Leahy Faults GOP Partisanship on Bush

Pardon my French (especially my French Friends) but this really sucks rotten eggs! 

So what the hell are you elected officials going to do, you big cowards? Are you going to leave the criminals to us, the people, to deal with. If you do that, the result won't be pretty.

Leahy, you were a prosecutor before you became a politician and senator. Do you know what the law in most states says about crimes and criminals that proper law enforcement officials refuse to investigate, let alone prosecute? 

You and you congressional pals had better give this some serious thought, because we have. 

We will not protect war criminals and violaters of the constitution. We have let crimes slide before. Every time we do, the next crimes are even worse. That's how we got into this nightmare in the first place. We, the people, cannot afford to allow the Bush/Cheney gang to walk away from their crimes. Oh No, not this time. As Junior himself would say, "you are either with us or against us." 

Which is it, Senator.

By Jason Leopold
April 2, 2009

Senate Judiciary Committee Chairman Patrick Leahy said the refusal of Republicans to act in a non-partisan way has hobbled his plan for a “truth commission” that would examine alleged Bush administration abuses.

In a Senate floor speech Thursday, the Vermont Democrat acknowledged that his plan could not move forward as he intended unless all sides approached the inquiry into ex-President George W Bush’s expansive claims to executive power with objectivity and fair-mindedness.

Leahy insisted that he had not abandoned his commission idea, but was “not interested in a panel comprised of partisans intent on advancing partisan conclusions. … I regret that Senate Republicans have approached this matter to date as partisans. That was not my intent or focus. Indeed, it will take bipartisan support in order to move this forward.”

On Monday, Leahy confided to a group of Vermonters that his “truth commission” is “not going to happen” because not a single a Republican would support it, according to journalist and author Charlotte Dennett, who attended the meeting. [See Consortiumnews.com’s “Leahy Bails on Truth Commission Plan.”]

On Thursday, a senior Leahy staffer did not dispute any of the comments Leahy was reported to have made to the Vermont group. But the staffer told me that Leahy is still serious about trying to attract Republican support for his commission idea.

In the floor statement, Leahy said, “I continue to call on Republicans to recognize that this is not about partisan politics. It is about being honest with ourselves as a country. We need to move forward together.”

But if bipartisan support is what it will take to get a truth commission off the ground, it’s likely not going to happen – and Leahy is well aware of that. Republicans are against the idea of any investigation of Bush’s “war on terror” policies, whether by a truth commission or a special prosecutor.

The Leahy staffer, who spoke on condition of anonymity, said that if the truth commission does not come to fruition, that doesn’t mean there wouldn’t be oversight into the Bush administration’s policies through “more traditional means,” such as congressional hearings.

The staffer said Leahy has not introduced formal legislation for a truth commission, and it’s unknown if he ever will.

Democratic Blame

Though the Republicans surely have sought to obstruct any comprehensive inquiry into Bush’s policies, many Democrats also have been lukewarm about the idea.

Aides to more than a dozen Democratic leaders in the Senate and the House, whom I have spoken to over the past week, told me lawmakers are simply not interested in an investigation into the Bush administration no matter what form it takes.

Those aides spoke on the condition that I would not disclose their names or the names of the lawmakers they work for so as not to anger the progressive base of the Democratic Party.

In his Thursday floor statement, Leahy noted that new evidence has only deepened concerns that Bush abused his presidential powers.

“In the months and years following 9/11, driven by an inflated view of executive power, the Bush-Cheney administration compromised many of the very laws and protections that are the heart of our democracy,” Leahy said. “Their policies, which condoned torture, extraordinary renditions and the warrantless wiretapping of Americans, have left a stain on America’s reputation in the world.

“In recent weeks, we have also seen a few more opinions previously issued by the [Justice Department’s] Office of Legal Counsel after 9/11 that had been kept secret until now. ... These opinions sought to excuse policies that trample upon the Constitution and our duly enacted legal protections.

“These opinions arise from an arrogant rationale that the President can do anything he wants to do, that the President is above the law. The last President to make that claim was Richard Nixon. We saw the results of that policy in Watergate. It was through efforts like the Church Committee that we revised our laws and moved forward. In my view, it is time to do so again.”

Those Justice Department’s legal opinions – many drafted by then-Deputy Assistant Attorney General John Yoo – asserted that President Bush had virtually unlimited powers to wage the “war on terror” and could ignore traditional constitutional rights, including the First Amendment’s guarantees of free speech and a free press.

“The country will need to have an honest discourse about what happened and what went wrong,” Leahy said. “I continue to feel strongly that a Commission of Inquiry would provide us the best nonpartisan setting in which to undertake that study and national conversation.”

In February, Leahy first proposed the idea of a “truth and reconciliation commission” as a way of probing the Bush administration’s “war on terror” policies, including torture of detainees at military prisons operated by the U.S.

Back then, Leahy, a former prosecutor, told students at Georgetown Law School that although President Barack Obama was unsupportive of the idea of “looking backwards” “many Americans feel we need to get to the bottom of what went wrong. …

“We need to be able to read the page before we turn it.”

Early last month, Leahy held a hearing, entitled “Getting to the Truth Through a Nonpartisan Commission of Inquiry,” where he heard from witnesses who testified about the pros and cons of setting up a special committee to investigate Bush-era abuses. But his idea drew little enthusiasm from his own committee and was treated contemptuously by some Republicans.

Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.

Let The Sun Shine In......

On Bush, Cheney Crimes: Seek Truth and Accountability

There will never be reconciliation without accountability!

posted by John Nichols on 03/04/2009 (The Nation)

Senate Judiciary Committee chair Patrick Leahy, D-Vermont, deserves credit for pressing ahead with his modest proposal to establish a truth and reconciliation commission to review the assaults on the Constitution and general lawlessness of the Bush-Cheney administration.

As Leahy said at the opening of Wednesday's Judiciary Committee hearing on "Getting To The Truth Through A Nonpartisan Commission Of Inquiry":

Nothing has done more to damage America's place in the world than the revelation that this Nation stretched the law and the bounds of executive power to authorize torture and cruel treatment. The Bush administration chose this course, but tried to keep its policies and actions secret, knowing that they could not withstand scrutiny in the light of day. How many times did President Bush go before the world and say that we did not torture and that we acted in accordance with law?

There are some who resist any effort to look back at all, while others are fixated on prosecution, even if it takes all of the next eight years, or more, and further divides this country.

Over the last month, I have suggested a middle ground to get to the truth of what went on during the last several years, in a way that invites cooperation. I believe that that might best be accomplished though a nonpartisan commission of inquiry. I would like to see this done in a manner removed from partisan politics. Such a commission of inquiry would shed light on what mistakes were made so that we can learn from these errors and not repeat them.

That is a reasoned and responsible stance, of the sort we have come to expect from Leahy.

There is no question that the chairman is pushing further into the constitutional thicket than President Obama or Attorney General Eric Holder seem to be willing to go. And there is certainly some merit in borrowing from the wise experiments in accountability initiated by other countries -- especially South Africa, which used the truth-and-reconciliation-commission model to get those responsible for Apartheid-era crimes to acknowledge where the bodies were buried in return for the promise of immunity.

Unfortunately, Leahy's proposal to remove from the table the prospect of prosecution of officials who have committed crimes goes against the fundamental American precept that the rule of law must apply to all of us -- even presidents, vice presidents, attorneys general and White House aides.

Justice Anthony Kennedy was correct when he observed in the Supreme Court decision restoring the writ of habeas corpus that was undermined by the Bush administration and its congressional amen corner, that the Constitution is not something an administration is able "to switch... on and off at will."

Even Leahy admits that: "We must not be afraid to look at what we have done, to hold ourselves accountable as we do other nations who make mistakes. We must understand that national security means protecting our country by advancing our laws and values, not discarding them."

Unfortunately, the chairman's proposal for a commission switches off the rule of law by suggesting that the prospect of legal prosecution even in cases of extreme lawlessness -- and congressional action to address gross assaults on the Constitution -- in favor of "developing a process to reach a mutual understanding of what went wrong and learn from it."

The chairman of the Constitution subcommittee of the Judiciary Committee, Wisconsin Democrat Russ Feingold, suggests that it is unwise to simply give up on the prospect of prosecuting lawbreakers.

While Feingold compliments Leahy's initiative and says that "getting all the facts out about what happened over the last eight years is a crucial part of restoring the rule of law," the Senate's most outspoken defender of the Constitution warned today against going too far in surrendering the essential tools of the accountability process.

"On the question of immunity, I think we should tread carefully," told Wednesday's hearing. "There are cases that may require prosecution, and I wouldn't want a commission of inquiry to preclude that. Those who clearly violated the law and can be prosecuted should be prosecuted. On the other hand, the country will really benefit from having as complete a telling of this story as possible, so the ability of the commission to seek immunity for lower level participants certainly needs to be considered. How to do this is one of the complex questions that I hope can be explored in this hearing."

The American Civil Liberties Union agrees with Feingold's view that prosecutions should not be ruled out. The group is urging Holder and the Department of Justice to appoint a special prosecutor to conduct an investigation and, if warranted by the facts, to bring criminal charges against members of the Bush-Cheney administration who broke the law.

Additionally, the ACLU is calling for the creation of a congressional Select Committee that would work in conjunction with Leahy's truth and reconciliation commission. "(The)combination of both committees would be an effective format for congressional review of Bush administration policies," explains an ACLU statement on the issue, which recalls the important work of a committee headed by Idaho Senator Frank Church that investigated executive abuses in the 1970s. "The Select Committee would have the ability to allocate the necessary time and resources outside of the day-to-day demands of the standing committee structure. It would also bring together members from the relevant committees with jurisdiction over the relevant issues to share their expertise concerning the programs under review."

Says ACLU Washington Legislative Office director Caroline Fredrickson: "Americans' faith in government has been deeply. While a truth commission is a valid and admirable suggestion, Congress must go further. Congress' complacent approach to oversight has done our country irreparable harm and legitimized illegal and counter-productive intelligence programs. It's time for Congress to step up in a very real way and assert its role of oversight."

Leahy is not a bad player here.

He understands that there must be a measure of accountability if we are going to renew this country's commitment to the rule of law and to constitutional governance.

The Vermonter is asking the right questions: "(How) did we get to a point where we were holding a legal U.S. resident for more than five years in a military brig without ever bringing charges against him? How did we get to a point where Abu Ghraib happened? How did we get to a point where the United States Government tried to make Guantanamo Bay a law-free zone, in order to try to deny accountability for our actions? How did we get to a point where our premier intelligence agency, the CIA, destroyed nearly 100 videotapes with evidence of how detainees were being interrogated? How do we make sure it never happens, again?"

But the answer to those questions must, necessarily, be bolder.

It will take a greater measure of accountability than just Leahy's truth commission to "make sure it never happens again."

The ACLU's Fredrickson is right when she says: "The truth commission is a beginning for Congress to reassert its power, but it must go further."

Let The Sun Shine In......

Leahy Announces List of Witnesses For 'Truth Commission' Hearing

Friday, 27 February 2009 12:07

By Jason Leopold Senate Judiciary Chairman Patrick Leahy released the list of three witnesses who will testify at a hearing next week on forming a "truth commission" to investigate controversial Bush administration policies, such as torture and domestic surveillance. Thomas Pickering served as Under Secretary of State from 1997-2000, and served as Ambassador to the United Nations for President George H.W. Bush. He holds the personal rank of Career Ambassador, the highest in the United States Foreign Service. Pickering is a member of the International Institute of Strategic Studies and the Council on Foreign Relations. Retired Vice Admiral Lee Gunn served in the military for 35 years. He was Inspector General of the Navy, and on the board of the American Security Project. Gunn has been outspoken about his opposition to detention and interrogation policies that have permitted torture. John Farmer served as a senior counsel and team leader for the 9/11 Commission. Farmer is a former State Attorney General for New Jersey. Through his work with the Constitution Project, Farmer has expressed support for an independent commission to examine Bush administration detainee and interrogation policies and practices. In a floor statement on Wednesday, Leahy said his March 4 hearing, “Getting to the Truth Through a Nonpartisan Commission of Inquiry," would examine the best way for an independent panel to probe how Bush exercised his “national security and executive power as related to counter-terrorism efforts.” “The past can be prologue unless we set things right,” the Vermont Democrat said. “The last administration justified torture, presided over the abuses at Abu Ghraib, destroyed tapes of harsh interrogations, and conducted ‘extraordinary renditions’ that sent people to countries that permit torture during interrogations. “The last administration used the Justice Department – our premier law enforcement agency – to subvert the intent of congressional statutes. They wrote secret law to give themselves legal cover for these misguided policies, policies that could not withstand scrutiny if brought to light.” On the same day, Speaker of the House Nancy Pelosi, in an interview with Rachel Maddow on her MSNBC program Wednesday, called Leahy's investigative plan “a good idea,” but objected to an immunity proposal by Leahy that could prevent prosecutors from holding Bush administration officials accountable for crimes in a court of law. Pelosi, who refused to hold impeachment hearings when George W. Bush was President, signaled that she now prefers a proposal by House Judiciary Committee Chairman John Conyers, who wants a “blue-ribbon panel” to probe the Bush administration but seeks a special prosecutor, too. Pelosi also said that when she was on the House Intelligence Committee during Bush's first term she was briefed about the CIA's "enhanced interrogation" techniques but only in the "abstract." She said she was never told the agency's interrogators intended to use such methods. Though Leahy has argued that a “truth commission” is the best way to expose the dark underbelly of Bush’s policies, other civil liberties experts say accountability requires bringing to justice perpetrators of serious crimes, no matter how high their government positions. On Tuesday, David Swanson of afterdowningstreet.org circulated a petition demanding Attorney General Eric Holder appoint a special prosecutor to launch a criminal investigation into the Bush administration’s actions. After Leahy’s Senate comments, the American Civil Liberties Union weighed in, urging both a special prosecutor and a congressional select committee. "Both the Obama administration and Congress have an obligation to conduct investigations in order to achieve accountability and to ensure these egregious errors will not happen again,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “In order for America to move forward and put torture and abuse behind us, we must know how our nation was led astray.” A Gallup poll, released this month, found a plurality favoring a criminal probe – and a strong majority supporting some additional fact-finding. For instance, on torture, 38 percent favored a criminal investigation while 24 percent favored an inquiry by an independent panel. Thirty-four percent of those polled said they did not support additional investigation of Bush’s policies. The poll results undercut claims of many Republicans and some Democrats that the public lacks the appetite to look into Bush administration abuses.

Let The Sun Shine In......