By William Fisher
In a preview of the heated divisions likely be triggered by the formation of a “truth commission” to investigate detainee interrogation, warrantless wiretapping and other alleged violations during the administration of President George W. Bush, witnesses before a Senate committee today characterized such a body as either a “profoundly bad idea” or “critically important” to avoiding the mistakes of the past.
The hearing before the Senate Judiciary Committee was the first held in Congress to explore the “truth commission” proposal put forth by committee chairman Senator Patrick Leahy, a Democrat of Vermont.
One of the witnesses, former U.N. Ambassador Thomas Pickering, who also served as Undersecretary of State during the administration of George Herbert Walker Bush, told the senators, “It’s not enough to say we’re going to look ahead. We need to know where we’ve been, what happened, and the implications for the nation and our foreign policy.”
He added that the nation must “take stock” in order to “neutralize the narrative of our adversaries” and “restore our reputation in the world.”
But another witness, David Rifkin, a senior Justice Department official under Presidents Ronald Reagan and George H.W. Bush, told the Committee that Congress has no authority to “outsource criminal investigations” to another body. In response to a comment from Sen. Sheldon Whitehouse, a Democrat from Rhode Island, Rifkin said he thought the “real idea behind a truth commission is to target a small number of Bush Administration officials.”
The Department of Justice should do that,” he added.
The testimony before the committee mirrors the country’s diversity of opinion about the wisdom of a “truth commission” among legal scholars, human rights and religious advocacy groups, as well as between Democrats and Republicans.
A Gallup poll, released last month, found that on the issue of detainee 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.
President Barack Obama has approached the “truth commission” proposal with caution. He told a recent press conference that his inclination was to look forward, not backward, but that “no one is above the law.”
The views of Rep. Nancy Pelosi, speaker of the House of Representatives, appear to have changed over time. She refused to hold impeachment hearings when George W. Bush was President, but now prefers a “blue-ribbon panel” to probe the Bush administration. She also wants the Department of Justice to appoint a special prosecutor.
Such a panel has been proposed in the House by Judiciary Committee Chairman John Conyers, a Michigan Democrat.
Human rights and religious groups have also been divided on the “truth commission” issue.
One religious group, the National Religious Campaign Against Torture (NRCAT) has called for an impartial, nonpartisan, and independent “Commission of Inquiry” to investigate U.S.-sponsored torture and to ascertain the extent to which Bush administration interrogation practices constituted "cruel, inhuman or degrading treatment." Their statement was signed by nearly two dozen prominent religious leaders, representing a broad array of religious denominations.
The American Civil Liberties Union has urged the establishment of a Select Committee to work in conjunction with Senator Leahy’s commission, believing that the combination of both committees would be an effective format for congressional review of Bush administration policies.
Another prominent human rights organization, the Center for Constitutional Rights, believes that the issue should be resolved by the Obama Justice Department.
“A full investigation and prosecution of these actions by the Bush administration is necessary for the Obama administration to meaningfully reassert the rule of law in the United States. Government officials are not above the law, and their actions impact the lives of millions of people around the world. Prosecuting these officials for their activities is, in fact, a meaningful mechanism for securing justice for the victims and the survivors of torture and war crimes, as well as for deterring future government officials from repeating this conduct.”
Another witness before Leahy’s committee, Jeremy Rabkin, a law professor at the George Mason University School of Law, told senators that simply being called to testify before a “truth commission” would imply guilt. He said the commission would be a violation of the witnesses’ civil rights, since “witnesses would not be able to defend themselves” as they would in a criminal prosecution in court.
But another witness, retired Admiral Lee Gunn, former Inspector General for the Navy, endorsed the “truth commission” idea and was highly critical of the detainee treatment practices of both the military and the Central Intelligence Agency. He said the guidance given by U.S. military and civilian leaders regarding the custody and interrogation of prisoners was “unclear, ambiguous, or just plain wrong.”
“We have failed American service men and women over the past eight years,” he declared, adding, “We have damaged the reputations of people who are trying to win hearts and minds” abroad.
Witness John Farmer, who served as a senior counsel to the 9/11 Commission, expressed support for an independent commission to examine Bush administration detainee and interrogation policies and practices. He told the committee that our torture of detainees has been counter-productive.
“Our tactics have prevented us from prosecuting” people involved in the 9/11 conspiracy, citing the case of the alleged 20th hijacker, Mohammad al-Qahtani.
The hearing’s intensity was heightened by the release earlier this week of a number of memoranda from the Justice Department’s Office of Legal Counsel (OLC), the unit that advises the president on major legal matters. Some of these memos told former President George W. Bush that, in wartime, he could send troops to arrest and detain people within the U.S. as “enemy combatants,” suspend the Constitutional rights of free speech and press, and surveille U.S. citizens without a warrant or showing of probable cause.
Sen. Arlen Specter of Pennsylvania, the senior Republican on the committee, said, “the OLC opinions are "shocking."
Near the top of the agenda for senators and witnesses was the issue of whether any kind of immunity from prosecution should be granted to those who testify before a “truth commission.”
Sen. Leahy said he was not interested in having the Justice Department prosecute low-level people and would consider granting them immunity. He said the work of a “truth commission” would be fact-finding and that evidence of criminal violations would be referred to the DOJ.