"At a minimum, the American people have to be able to see and judge what happened," said one senior adviser, who asked not to be identified talking about policy matters. The commission would be empowered to order the U.S. intelligence agencies to open their files for review and question senior officials who approved "waterboarding" and other controversial practices.
Obama aides are wary of taking any steps that would smack of political retribution. That's one reason they are reluctant to see high-profile investigations by the Democratic-controlled Congress or to greenlight a broad Justice inquiry (absent specific new evidence of wrongdoing). "If there was any effort to have war-crimes prosecutions of the Bush administration, you'd instantly destroy whatever hopes you have of bipartisanship," said Robert Litt, a former Justice criminal division chief during the Clinton administration. A new commission, on the other hand, could emulate the bipartisan tone set by Tom Kean and Lee Hamilton in investigating the 9/11 attacks.
There is, somehow, the idea that the rule of law is disposable where Bush & Co are concerned. A commission is a very good way to look very busy and bury something so that it is never acted upon. If there is an idea that some commission's findings would prevent torture with new recommendation a hole immediately appears in the logic. It is entirely unnecessary to find ways to prevent torture, it is already illegal and waterboarding has been a war crime for a very long time - as a specific example. What exactly are the needed steps a commission would find? To make illegal what is already illegal? If illegality was insufficient to prevent torture, perhaps the conviction of a few criminals would get the idea across.
What ever you may think of GW Bush's intellect, he does have a few effective lawyers working for him. Being lawyers, the technical aspects of law are what counts. You might like to consider this from the Wall Street Journal:
The White House isn't inclined to grant sweeping pardons for former administration officials involved in harsh interrogations and detentions of terror suspects, according to people familiar with the situation.
Some Republicans have been pushing for President George W. Bush to grant pre-emptive clemency to officials who fear being investigated by Democratic critics. White House officials have countered that such pardons are unnecessary, these people say. The officials point to Justice Department legal opinions that supported the administration's methods of detaining and interrogating terror suspects.
If you want to read through all the so-called reasoning behind this, knock yourselves out. Illegal is illegal no matter how many memos you write, they have no force of law. Bush can't acknowledge the illegality by issuing pardons but more to the point is that lack of being pardoned.
It is a point of law that we hold to pretty darn firmly that the accused cannot be forced to testify against himself. Those directly involved don't have any reason to talk and if Congress were to compel them to, the Ollie North mess is the outcome. At these levels you have to have some direct testimony, the actual criminal torturing scum are those who ordered it. This doesn't involve the usual criminal action of some Spec 4 soldier, it involves bureaucrats experienced in isolating themselves from fallout. You need documents and you need the testimony of direct participants, people with every reason to not cooperate.
Once GWB has made it clear that criminal penalties have not been taken off the table, the only alternative is for Congress or DOJ to start taking them off the table to get that "Commission" testimony. GWB avoids pardoning and puts the onus on the Democrats. This leaves the incoming administration with some rather uncomfortable options. They can take the actual dissuasion for torturing - its illegality - off the table or they can get involved in messy and difficult prosecutions that will be labeled by the usual suspects as partisan foul play.
If you're willing to sit on or promote such a Commission, here's the deal, you ought to have to spend a week getting the treatments. If you have in mind the concept that political considerations trump the existing laws, you should get to experience the previous trumping of existing laws. There is exactly no need whatever for a Commission to exist until after a DOJ prosecution of those involved. You do not promote avoidance of behavior by OKing it. If you propose to keep future administrations from playing at torture then there has to be a cost for doing so. Otherwise they will simply look at history and note the outcome for the Bush Torturers and figure, "hell, why not?" Law is a deterrent if it is perceived as functioning and applied, it is not some moral guide post - if that were the case no jails would be built, everybody's morals would keep them from acting up.
Don't hold your breath; the political class is reluctant to kick its own around and particularly to jail them. It seems that having administrations investigate and prosecute the malfeasance of previous ones exposes them to the same when they become previous. There also is a little matter of Congressional votes in regard to this issue and a few others. Can't have people held responsible, now can we?
Kari Chisholm, founder of Blue Oregon and Mandate Media, from comments:
What about a South African -style Truth and Reconciliation Commission?
Basically, the idea is that if you testify completely, answering all questions truthfully, then you're immune from both criminal prosecution and civil lawsuits.
I do think that one key here is the civil liability issue. The DOJ may wind up uninterested in prosecuting people, but they won't be immune from losing their house.
Seems to me that as much as we'd like people to go to prison, it can be more valuable to turn them into pariahs and render the verdict of history.
And then, we can change the law to ensure that Presidents are never again able to issue executive orders to undermine basic human rights and American principles against wiretapping, torture, and the rest of the atrocities.
11/26/2008 05:10:00 PM
The verdict from history is safe, convictions in hand it is even safer. What is it that is proposed to be fixed? This is extraordinarily simple, it is against the law. This is not a question, there may be some mechanics of charging whom with what that gets a little sticky - GW Bush is up to his pie hole in it - but it is simply against the law and has been against the law for a damn long time. The fix for those who would ignore the law is for the law to not ignore them. This is an entirely political bullshit proposition to avoid the nastiness of prosecuting goddamn Republicans. If those pricks want to operate within the laws of a somewhat civilized nation called the US then playing bipartisan is just fine, but outside tha line your ass is the law's.
No, it will not happen. It will not happen because this country is in such a damn mess that Democrats will fall all over themselves to keep from kicking their teeth in. Somehow, if the President does it, it is not illegal. The idea being to avoid truly messy transitions and specious charges being brought at regime changes. The thing about it is that this is egregious, it is not specious, it is not politically motivated, it is and has been against the law and people have been jailed for long periods to doing it. There is exactly one way for people to get over the idea that "I'm from the government," grants carte blanche and that is for not to. Go ahead and try this shit as a private citizen and see what happens. There it is, exactly.