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," policymakers
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 tempered his responses
to adhere more closely to Obama's position.
The president initially refrained from commenting on 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 a whole range of decisions made
during the Bush administration. At the time, Obama said he had not seen the
Leahy proposal, although he has not explicitly ruled it out.
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 the U.S.' reputation in the world.
Leahy said the primary goal of the commission would be to learn the truth
rather than to prosecute former officials, but he 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, the 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
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
and extraordinary rendition. The panel's members would come from outside the
government and be appointed by the president and congressional leaders of both
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. In answer to a
question from IPS, Amnesty International's Tom Parker said, "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 IPS, "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 IPS, "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,"
Brian J. Foley, visiting associate professor at Boston University law school,
takes a harder line. He told IPS, "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 the country'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
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 citizens 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 Democrat-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
(Inter Press Service)