Will Obama Administration Launch a Truth Commission?

February 22, 2009
To Investigate or Not: Four Ways to Look Back at Bush
By SCOTT SHANE
WASHINGTON — Two days after his re-election in 1864, with Union victory in the Civil War assured, Abraham Lincoln stood at a White House window to address a boisterous crowd of supporters. He spoke of the lessons of the nation’s calamitous recent history.
“In any future great national trial, compared with the men of this, we shall have as weak and as strong; as silly and as wise; as bad and as good,” Lincoln said. “Let us, therefore, study the incidents of this as philosophy to learn wisdom from, and none of them as wrongs to be revenged.”
Today there are new calls for such study, not universal but certainly loud enough, directed this time at the Bush administration’s campaign against terrorism. Interrogation techniques that the United States had long condemned as torture, secret prisons beyond the reach of American law and eavesdropping on American soil without court warrants are at the top of a lot of lists.
But as Lincoln knew, one man’s wisdom is another’s vengeance. Repeatedly in American history, and in “truth commissions” in some two dozen countries from Argentina to Zimbabwe since the 1980s, it has turned out to be a tricky business to turn the ferocious politics of recent events into the dispassionate stuff of justice and the rule of law.
A USA Today/Gallup poll this month found that 62 percent of Americans favor either a criminal investigation or an independent panel to look into allegations of torture. Still, many people, primarily Republicans, insist the Bush policies were vital to protect the country, and the Obama administration is treading gingerly. When Senator Patrick J. Leahy of Vermont, the Democratic chairman of the Judiciary Committee, proposed a commission to investigate torture and eavesdropping, President Obama didn’t embrace the idea.
Already grappling with two wars and an economic meltdown, Mr. Obama said he was “more interested in looking forward than I am in looking backwards.” But the door was ajar; he also declared that “nobody is above the law.”
Mr. Leahy is undeterred. In an interview, he laughed and described the president’s remarks as “an enthusiastic endorsement.” He said he would work to build support for the idea in Congress.
As a senator under seven presidents, Mr. Leahy said, he has learned that the temptation to abuse powers in a crisis is bipartisan, and the commission’s review should include the role of Democrats in Congress in approving the Bush policies. The work should be done in one year, he added, to avert accusations that it was being dragged out for political gain.
Mr. Obama’s most enthusiastic supporters remain passionate about “looking backwards,” arguing that the Bush policies darkened the United States’ reputation, to Al Qaeda’s benefit. They include Representative John Conyers of Michigan, the House Judiciary chairman, who has sponsored a bill to set up an investigative panel.
Many Republicans, however, say the lofty appeals to justice and history mask an unseemly and dangerous drive to pillory the Bush administration and hamstring the intelligence agencies.
That was precisely the view of an aide in Gerald Ford’s White House named Dick Cheney when a Senate committee led by Frank Church of Idaho looked into intelligence abuses in the mid-1970s. A quarter-century later, as vice president, Mr. Cheney would effectively wreak vengeance on that committee’s legacy, encouraging the National Security Agency to bypass the warrant requirement the committee had proposed and unleashing the Central Intelligence Agency he felt the committee had shackled.
If advocates of looking back have their way, what are the options? Some past inquiries offer models, each with different potential winners and losers.
A CRIMINAL INVESTIGATION (IRAN-CONTRA)
Attorney General Eric H. Holder Jr. said at his confirmation hearing that he, like Mr. Obama, did not want to “criminalize policy differences” by punishing officials for acts they believed were legal. The same language was used in 1992 by President George H. W. Bush when he pardoned six officials charged in the Iran-contra investigation. Mr. Bush called the charges “a profoundly troubling development in the history of our country: the criminalization of policy differences.”
The Iran-contra case illustrates the obstacles to any prosecution that unfolds in a polarized political atmosphere. An independent prosecutor, Lawrence E. Walsh, worked for six years to untangle shady arms deals, defiance of Congress and a cover-up. But because of the pardons and court rulings, the key figures escaped all punishment except large legal fees and damaged reputations.
The sharpest critics of the Bush programs insist that only prosecution can restore the law to its proper place. They note that some 100 terrorism suspects have died in American custody and say a prosecution for conspiracy to torture could target both the high-level officials who approved the likes of waterboarding and lawyers who justified it.
But many legal experts believe that the Justice Department would be hard pressed to prosecute as torture methods that the department itself declared in 2002 not to be torture. And if an important goal is to determine who devised the policies, a push to prosecute might only persuade past officials to lawyer up and clam up.
A CONGRESSIONAL INVESTIGATION (CHURCH)
If there is a close precedent for the investigation now being debated, it is the inquiry led by Senator Church in 1975-76, which recorded in stunning detail some of the darkest chapters in American history. Its reports chronicled the C.I.A.’s bumbling attempts to assassinate foreign leaders; the N.S.A.’s watchlisting of civil rights and antiwar activists; and the F.B.I.’s campaign to drive the Rev. Dr. Martin Luther King Jr. to suicide.
The reports led directly to a series of reforms, including President Ford’s ban on assassinations, the creation of the Foreign Intelligence Surveillance Court to approve national-security eavesdropping and the establishment of Congressional oversight of the intelligence agencies.
But some Republicans saw Mr. Church as a showboat and his committee as overreaching. To Mr. Cheney, the Church legacy was a regrettable pruning of the president’s powers to protect the country — powers he and Bush administration lawyers reasserted after the Sept. 11, 2001, attacks.
A BLUE-RIBBON PANEL (9/11 COMMISSION)
Though Mr. Leahy praised the Church Committee, his own proposal would take the investigation away from Congress in favor of “a group of people universally recommended as fair minded.” He also suggested subpoena power and, perhaps most important, a South Africa-style trade-off: immunity for officials who testify truthfully.
Investigative commissions date at least to 1794, when George Washington used one to negotiate a settlement of the Whiskey Rebellion. The 9/11 commission, a recent example, largely overcame partisanship and drew generally positive reviews.
A commission would free Congress to focus on current problems, including the economic crisis. And promises of immunity might answer concerns expressed last month by the departing C.I.A. director, Michael V. Hayden — that any investigation would discourage intelligence officers from acting boldly for fear of later second-guessing.
DOING NOTHING
Or more accurately, finishing up and rolling out the inquiries already under way. Even if the push for a broad investigation loses momentum, the Bush programs will not soon be forgotten. Among major inquiries expected to conclude soon: a report from the Justice Department’s ethics office on legal opinions justifying harsh interrogations; the criminal investigation of the C.I.A.’s destruction of interrogation videotapes; and a report by the Justice Department inspector general on the N.S.A.’s warrantless eavesdropping.
Meanwhile, thousands of documents relating to secrets of the Bush years are being sought by journalists and advocates. Mr. Obama has directed agencies to lean strongly toward disclosure.
Frederick A. O. Schwarz Jr., who served as chief counsel for the Church Committee and has called for a new commission, said there is no telling what a thorough investigation may turn up. He recalled his shock as he sat in a secure room at the C.I.A. in 1975 and read that the agency had recruited the Mafia in a scheme to kill Fidel Castro.
“It may seem that we already know a lot,” Mr. Schwarz said. “But based on my experience, I’m certain there’s a lot that went on the last eight years that we still don’t know.”