A Gitmo Commission?

By Cernig

According to the HuffPo and Newsweek today, Obama is considering a middle course between straight-out investigating the need for prosecutions for war crimes and just letting the Bush administration's torturers skate.

one idea that has currency among some top Obama advisers is setting up a 9/11-style commission that would investigate counterterrorism policies and make public as many details as possible."

"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.

 The idea would be that such a commission, more like the 9/11 one or the presidential commission appointed by Gerald Ford in 1975 and headed by Nelson Rockefeller that investigated cold-war abuses by the CIA, would defuse allegations of a partisan witch-hunt and instead would concentrate on simply making all the facts available to the American public. And if that public then decided that prosecutions were needed and popular pressure for such an investigation mounted...

For his part, Obama's expected nominee for Attorney General, Eric Holder, has long spoken out against the Bush administration's torture policy.

In 2004, for example, Holder told an American Constitution Society conference, "The notion that the Department of Justice would in essence sanction the use of torture as part of the President's plenary power over military operations is as wrong as it is shortsighted. This position flies in the face of the entire history of American law, helping to create a climate in which unnecessarily abusive conduct can somehow be considered legitimate."

If the political climate syill meant that investigations and trials would be counterproductive here in the U.S., then the Obama administration could turn the commission's findings over to The Hague and step aside saying that Bush and the rest 'have nothing to fear if they've done nothing wrong"; the very mantra used by Bushevicks against Gitmo detainees facing kangaroo courts. And at the very least, Bush's legacy would be forever that of his greatest crimes and America as a nation would have turned away from such practises in public disgust. I could live with that.

Comments

[nadezhda]

Scott Horton (Harpers) has a very good post on why, as a legal matter, a commission rather than prosecutions is not only the best but perhaps the only way to go at the outset on how we have handled detainees (torture, Gitmo, black sites, renditions, etc). Here's his conclusion:

But the bottom line is that there should be no call about prosecutions until there has been an investigation. The question is really how should an investigation be conducted, and who should conduct it?

In the end any prosecution would require a special prosecutor, but who should handle the threshold inquiry into whether enough exists to appoint one? Again, the Justice Department has resources for that purpose that cannot properly be put in play. There is one clear answer, which is for President Obama to follow the example of President Ford in his dealings with allegations of intelligence community misconduct with high-level complicity that rocked the mid-seventies. He should appoint a commission to lay bare the facts, putting what the public needs to know on the record. Only then should the call about a special prosecutor be made by the attorney general. He should have the commission’s advice and findings to draw on in the process, and he should take the decision avoiding the political tug-of-war now going down and the dark interests who are driving it.

President Obama shouldn’t be focused on the fate of individual potential defendants. He should care about the nation’s reputation, our commitment to the rule of law, and a process that is worthy of our best traditions and aspirations.

And of course there's the political argument -- which I find totally persuasive -- that we have to reestablish DoJ's credibility on a wide range of issue areas, and if DoJ were to lead on a torture investigation, it would fuel a firestorm over "witchhunts" that would do terrible damage to restoring DoJ's professionalism.

Whether anyone is ever "brought to justice" -- in the US or abroad -- is IMO a secondary consideration. First and foremost is to expose the "dark side" and build a broad public consensus that it was an inexcusable abuse of power, immoral and un-American. "Never again" should be branded on the public consciousness.

I'm sympathetic to the argument that letting the Iran-Contra criminals off with wrist slaps or pardons set a terrible precedent. But I think the larger failure was not in failing to punish them but rather in failing to forge a political consensus that they had engaged in treasonous unconstitutional usurpation of power. The threat of prosecution, the immunity games, etc. allowed the whole public airing in Congress to descend into the weeds of who-shot-(or shredded)-John and penny ante trials. Lots of shiny objects for the politicos and media to chase after, but at the cost of making a forceful case against the entire enterprise.

On the torture front, we shouldn't make that mistake again. A commission needs to be accompanied by a huge public communications campaign that gets a few critical messages burned into the public's collective mind about the horror of what we have done and about responsiblity at the highest levels. As Horton notes, that's primarily a political (in the broad rather than partisan sense), not a legal, exercise. Once that's accomplished, and only then, can Obama contemplate where the process goes next.

[smintheus]

I can't live with that, Cernig. The rule of law requires that we prosecute criminals whether or not it's popular or considered politically expedient.

There's no doubt we need a thorough investigation as well as prosecutions. But let's not pretend that we don't have ample evidence already of criminal activity by the Bush administration. That merits a grand jury or two.

For the same reason as Horton, I think that requires the appointment of a special prosecutor answerable to Congress.

As for Obama's putative concern that he can't simultaneously pursue his domestic agenda while prosecuting his predecessor's crimes, my response is "tough". He wanted the top job and that's what comes with it. We've known since long before Obama started running for president that Bush & Co. were implicated in crimes. If Obama thought all along that he wasn't up to prosecuting those crimes, he had an obligation to tell the public that. If you spend years seeking the office, then you damned well better do the job...because now nobody else is in a position to do it if he refuses to.

I also disagree with nadezhda. The refusal of Democrats in the past to prosecute Republicans for crimes such as Iran Contra is the ultimate standard on which they should be judged. Building or not building a national consensus about those crimes is a matter of politics, and politics should not trump law enforcement.

[smintheus]

Oh, and I meant to point out as well that when they unveiled their findings, the 9/11 commissioners proudly declared that the very first thing they did was to decide that they should not "play the blame game". They said, as if endowed with divine wisdom, that it would have been unproductive to seek to determine who was at fault (ahem, George Bush) for failing to anticipate the 9/11 attacks. So they gave us instead a no-fault report.

Not exactly my idea of the best model for an investigation of the crimes of the Bush administration.