By Jason Leopold
Online Journal Feb 10, 2009, 00:42
Senator Patrick Leahy Monday proposed the creation of a “truth and
reconciliation commission” to investigate Bush administration abuses
such as its use of torture and domestic surveillance.
Leahy, the chairman of the powerful Senate Judiciary Committee, made
the announcement during a speech at Georgetown University’s Law Center.
His announcement will likely be followed in the days ahead with a
proposed bill to create an investigative panel “to get to the bottom
of what happened — and why — so we make sure it never happens again.”
“One path to that goal would be a reconciliation process and truth
commission,” Leahy said. “We could develop and authorize a person or
group of people universally recognized as fair minded, and without
axes to grind.
Their straightforward mission would be to find the truth. People would
be invited to come forward and share their knowledge and experiences,
not for purposes of constructing criminal indictments, but to assemble
the facts. If needed, such a process could involve subpoena powers,
and even the authority to obtain immunity from prosecutions in order
to get to the whole truth.
“As to the best course of action for bringing a reckoning for
the actions of the past eigh t years, there has been heated
disagreement. There are some who resist any effort to investigate
the misdeeds of the recent past. Indeed, some Republican Senators
tried to extract a devil’s bargain from the Attorney General nominee
in exchange for their votes, a commitment that he would not prosecute
for anything that happened on President Bush’s watch. That is a pledge
no prosecutor should give, and Eric Holder did not, but because he
did not, it accounts for many of the partisan votes against him.”
President George W. Bush and Vice President Dick Cheney both admitted
publicly last year they had personally authorized the waterboarding
of at least three suspected terrorists and allowed interrogators to
use harsh methods against 33 other suspects. However, Bush and Cheney
denied that these actions violated anti-torture laws.
Waterboarding is a technique that makes the victim believe he is
drowning and has been regarded as torture at least since the Spanish
Inquisition. The U.S.
government has treated its use in battlefield interrogations as a
war crime, and the Justice Department prosecuted a Texas sheriff in
the 1980s for using waterboarding to extract confessions from suspects.
But in his first prime-time news conference Monday evening, President
Barack Obama said his “general orientation is to say let’s get it
right moving forward.”
“I haven’t seen the proposal so I donE2t want to express an opinion
on something I haven’t seen,” Obama said in response to a question
about Leahy’s plan.” What I have said is that my administration
is going to operate in a way that leaves no doubt that we do not
torture that we abide by the Geneva Conventions and that we observe
our traditions of rule of law and due process as we are vigorously
going after terrorists that can do us harm.
“My view is also that nobody is above the law, and if there are clear
instances of wrongdoing, then people should be prosecuted just like
any ordinary citizen. But generally speaking, I am more interested
in looking forward than I am in looking backwards. I want to pull
everybody together including all the members of the intelligence
community who have done things the right way and have been working
hard to protect America and are sometimes painted with a broad brush
without adequate information”
In addition to torture and domestic surveillance, Leahy said the
proposed panel should investigate the politicized firings of nine
U.S. attorneys and could also delve into efforts by former Bush
officials in the Department of Justice to pressure U.S. attorneys to
prosecute “voter fraud” cases involving liberal organizations such
as the Association for Community Reform Now (ACORN).
Leahy added that he was unsure whether the public would support
congressional effort s to investigate the Bush administration and
decided to make the announcement about the “commission” to gauge
whether there is interest.
Last month, Leahy’s counterpart in the House, Rep. John Conyers,
introduced legislation to create a blue ribbon panel of outside
experts to probe the “broad range” of policies pursued by the Bush
administration “under claims of unreviewable war powers,” including
torture of detainees and warrantless wiretaps.
In a column published Jan. 31 on the Huffington Post, Conyers said
an examination of what the Bush administration has done requires a
comprehensive overview of how these abusive policies evolved.
“While disparate investigations by committees of Congress, private
organizations and the press have uncovered many important facts, no
single investigation has had access to the full range of information
regarding the Bush administration’s interrelated programs on
surveillance, detention, interrogation and rendition,” Conyers wrote.
“The existence of a substantially developed factual record will
simplify the work to come, but cannot replace it. Furthermore, much
of this information, such as the Central Intelligence Agency’s 2004
Inspector General report on interrogation, remains highly classified
and hidden from the American people.
An independent review is needed to determine the maximum information
that can be publicly released.”
While Co nyers has also called for the appointment of an independent
counsel to launch a criminal probe into the Bush administration’s
policies, Leahy said his proposal would be designed to appease public
demands for accountability and not recommend prosecutions of any sort.
“We need to come to a shared understanding of the mistakes of the
past,” said Leahy, a Vermont Democrat. “Rather than vengeance, we
need a fair-minded pursuing of what happened.
Leahy said the commission, whose membership could either be
congressional or presidential appointees, would have subpoena power
and could grant witnesses immunity from prosecution in exchange for
their testimony — except in cases of perjury — about how some of
the Bush administration’s most controversial policies were formed.
Leahy is one of a handful of Democratic leaders who has come out in
support of investigating the Bush administration’s policies since
Barack Obama’s inauguration last month.
Last month, Senate Majority Leader Harry Reid said he would support
funding and staff for additional fact-finding by the Senate Armed
Services Committee, which released a report in December tracing abuse
of detainees at Guantanamo Bay and Abu Ghraib to Bush’s Feb. 7, 2002,
decision to exclude terror suspects from Geneva Convention protections.
Democratic Majority Leader Steny Hoyer of Maryland also spoke
up in support of investigating Bush’s policies and decisions the
administration made in the name of national security.
“Looking at what has been done is necessary,” Hoyer said last
month. House Speaker Nancy Pelosi agreed, telling Fox News’s Chris
Wallace “the past is prologue.” Pelosi has publicly expressed support
for Conyers’ plan.
Additionally, Sen. Sheldon Whitehouse, D-Rhode Island, a former federal
prosecutor and a member of the Senate Judiciary Committee, said during
a conference two weeks ago that, “we need to follow this thing into
those dense weeds and shine a bright light into what was done.”
Whitehouse made those comments at a two-day medical conference
sponsored by Physicians for Human Rights (PHR), which has called for
an investigation into the Bush administration’s use of interrogation
techniques that have been widely regarded as torture.
“We can paper it over if we choose, but the blueprint is still lying
there for others to do it all over again. It’s important that we not
let this moment pass,” he told the 400 or so attendees.
On Monday, Whitehouse said Leahy “summed up a belief shared by millions
of Americans: that we need to ‘get the truth out’ about the damage
done to this country under the Bush administration, and what we now
must do to repair it.”
Attorney General Eric Holder said during his confirmation hearing
earlier this month that “waterboarding is torture,” but the Obama
administration has hesitated to launch new investigations of the
Bush administration’s crimes partly out of fear that would infuriate
Republicans who might retaliate by obstructing Democratic economic
plans during a deepening recession.
On Monday, some Republicans dismissed Leahy’s remarks and his proposal
as “politics as usual.”
“No good purpose is served by continuing to persecute those who
served in the previous administration,” said Rep. Lamar Smith,
R-Texas. “President Obama promised to usher in an era of ‘change’
and bipartisan harmony.
Unfortunately, the continued effort by some Democrats to unjustly
malign former Bush administration officials is politics as usual.”
Incoming CIA Director Leon Panetta said during his confirmation hearing
last week that the Obama administration would not seek to prosecute CIA
interrogators who performed brutal techniques, such as waterboarding,
against suspected terrorist detainees.
Panetta told The Associated Press in an interview after his
confirmation hearing that “we just can’t operate if people feel even
if they are following the legal opinions of the Justice Department
they could be in danger of prosecution.”
The authors of those legal memos, however, are under scrutiny by a
Justice Department watchdog.
Sen. Whitehouse and Sen. Dick Durbin, D-Illinois, wrote20a letter
to the agency last year requesting an investigation into the role
“Justice Department officials [played] in authorizing and/or overseeing
the use of waterboarding by the Central Intelligence Agency . . . and
whether those who authorized it violated the law.”
The senators’ Feb. 12, 2008, letter to Inspector General Glenn Fine
and H.
Marshall Jarrett, head of the Office of Professional Responsibility
(OPR), asked them to examine whether the legal advice met professional
standards and whether the lawyers were “insulated from outside pressure
to reach a particular conclusion?”
Whitehouse and Durbin also asked what role was played by Bush’s White
House and the CIA in possibly influencing “deliberations about the
lawfulness of waterboarding?”
Less than a week later, Jarrett responded by saying the senators’
concerns were already part of a pending investigation that OPR was
conducting into the genesis of the Aug. 1, 2002, legal opinion widely
known as the “torture memo.”
The memo, which gave a legal stamp of approval for the Bush
administration’s torture policies, was written by Deputy Attorney
General John Yoo, who worked in the Justice Department’s Office of
Legal Counsel (OLC), and was signed by his boss, Jay Bybee, who is
now a federal appeals court judge. Yoo is now a law professor at the
University of California at Berkeley.
The OPR inquiry is expected to be completed by early March.