To Investigate Bush or Not

By William Fisher

With growing public support for a public investigation of crimes that may have been committed by the administration of former president George W. Bush in waging its “global war on terror,” policy makers and legal experts are deeply divided on how to proceed – and President Barack Obama seems ambivalent about whether to proceed at all.

The President has said his view is that “nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen, but that, generally speaking, I’m more interested in looking forward than I am in looking backwards."

Before his nomination to be Obama’s Attorney General, Eric Holder appeared to take a stronger view. He said, “Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the procedures that violate both international law and the United States Constitution.... We owe the American people a reckoning.”

But at his confirmation hearing before the Senate, Holder appeared to temper his response to be similar to Obama’s position.

Obama’s initial reaction was to a proposal from the chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, a Vermont Democrat, for a "truth commission" to investigate abuses of detainees, politically inspired moves at the Justice Department, and whole range of decisions made during the Bush administration. At the time, Obama said he had not seen the Leahy proposal.

Such a “truth commission” is one of several ideas being offered by those who see a comprehensive look-back as essential to cleansing the U.S. justice system and restoring America’s reputation in the world.

Leahy said the primary goal of the commission would be to learn the truth rather than prosecute former officials, but said the inquiry should reach far beyond misdeeds at the Justice Department under Bush to include matters of Iraq prewar intelligence and the Defense Department.

The panel he envisions would be modeled after one that investigated the apartheid regime in South Africa. It would have subpoena power but would not bring criminal charges, he said.

Among the matters Leahy wants investigated by such a commission are: the firings of U.S. attorneys, treatment and torture of terror suspect detainees, and the authorization of warrantless wiretapping. He said that witnesses before such a commission might have to be granted limited immunity from prosecution to obtain their testimony.

Other Democrats have called for criminal investigations of those who authorized certain controversial tactics in the war on terror. Republicans have countered that such decisions made in the wake of the 2001 terror attacks should not be second-guessed.

An arguably stronger measure has been proposed by House Judiciary Committee Chairman John Conyers, a Michigan Democrat, and nine other lawmakers. The measure would set up a National Commission on Presidential War Powers and Civil Liberties, with subpoena power and a reported budget of around $3 million. It would investigate issues ranging from detainee treatment to waterboarding to extraordinary rendition. The panel's members would come from outside the government and be appointed by the president and congressional leaders of both parties.

This body would be much like the 9/11 Commission, set up after the Sept. 11 2001 attacks, to examine failures within government anti-terror efforts. The Commission’s investigation did not lead to any prosecutions.

Human rights advocacy groups and many legal experts have been more forceful in their proposals.

For example, Amnesty International is urging its supporters to press lawmakers to investigate the U.S. government's abuses in the war on terror and hold accountable those responsible. The organization is calling on Obama and Congress to create an independent and impartial commission to examine the use of torture, indefinite detention, secret renditions and other illegal U.S. counterterrorism policies.

But the organization does not necessarily see a conflict between a 9/11-type body and a “truth and reconciliation” commission. Amnesty International’s Tom Parker told us, “I don’t think the two approaches are mutually exclusive. Both could go forward at the same time. The immunities that may have to be granted by a Truth and Reconciliation Commission would not be absolute.”

Marjorie Cohn, president of the National Lawyers Guild, does not favor the “truth and reconciliation” approach. She told us, “As President Obama said, ‘No one is above the law.’ His attorney general should appoint a special prosecutor to investigate and prosecute Bush administration officials and lawyers who set the policy that led to the commission of war crimes. Truth and Reconciliation Commissions are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.”

A similar view was expressed by Peter M. Shane, a law professor at Ohio State University. He told us, “The immunities that might be granted in connection with a congressional or commission investigation of the Bush Administration could well compromise the prospects for criminal prosecution, as our experience with the Iran-Contra affair demonstrates. There is likewise reason to fear that justice cannot be completely served without recourse to prosecution.”

“On the other hand”, he said, “I believe our paramount need as a country is for a full and fair airing of the historical record; democracies depend, I think, on an unblinking understanding of their past.”

“One would hope that immunity might be granted as narrowly as possible and that efforts would be undertaken to allow the Justice Department to preserve its investigative integrity based on independently developed evidence. Should push come to shove, however, I think history is more important than prosecution,” he added.

Brian J. Foley, Visiting Associate Professor at Boston University law school, takes a harder line. He told us, "Until we have Truth and Reconciliation Commissions rather than prosecutions for drug offenders and others accused of non-violent crimes whom we promiscuously throw into our overcrowded prisons, we should not bestow 'justice lite' on our political leaders. It appears that laws designed with government actors in mind were broken. There should be prosecutions."

And Georgetown University’s David Cole, one of America’s preeminent constitutional lawyers, believes the Obama administration or Congress “should at a minimum appoint an independent, bipartisan, blue-ribbon commission to investigate and assess responsibility for the United States' adoption of coercive interrogation policies.” It should have “a charge to assess responsibility, not just to look forward.”

This divergence of viewpoints – from doing nothing to appointing a special prosecutor – is putting President Obama in an uncomfortable position. The most recent Gallup Poll shows that a sizable majority of Americans favors an investigation into Bush-era misconduct. But Obama appears reluctant to take any action that might further divide the country. Moreover, he may be loath to antagonize Republicans, whose support he may need on many other issues in the future.

The Democratically-controlled Congress does not need the president in order to act – it can hold extensive hearings, grant itself subpoena power and in effect take whatever action it desires short of legislation, which would require the President’s signature. But Congressional Democrats may well be reluctant to overtly defy the wishes of the president, who is the leader of their party.

So the form of the Bush-era retrospective – if there is to be one -- is yet very much a work in progress that will continue to put pressure on the young Obama Administration.