Handling the Truth

By Dan Froomkin
1:10 PM ET, 03/ 5/2009

When it comes to exploring and exposing the depths of the Bush administration's counterterrorism policies, congressional Democrats can't seem to agree on the best approach. Should there be congressional investigations? Criminal investigations? Perhaps a bipartisan "truth commission"? Meanwhile, nobody at the White House seems much interested in any of those options.

And at a Senate Judiciary Committee hearing yesterday, several Republicans made the argument: criminal charges or bust.

Committee Chairman Patrick J. Leahy of Vermont called the hearing to discuss his proposal for a truth commission. John Cushman writes for the New York Times that "Leahy has not yet fashioned an explicit proposal for what he calls his middle way, something between aggressive criminal prosecution of anyone who might have overstepped legal limits, or not exploring the past at all. The hearing was an effort to build momentum for his idea, by hearing from distinguished supporters including former diplomats, law enforcement officials and military officers. But it was not a one-sided show, including harsh critics of the idea as well."

Daphne Eviatar writes in the Washington Independent that "what was most surprising was that the Senate Republicans and their witnesses, in the process of ripping apart the idea, made the strongest case I've heard yet for why the Department of Justice should prosecute former senior officials of the Bush administration.

"Sen. Arlen Specter, the ranking committee Republican...referred to the recent disclosures of Office of Legal Counsel memos as potentially supporting the case for prosecutions.

"'You've had some rather startling disclosures, with the publicity in recent days about unusual -- to put it mildly -- legal opinions' to justify broad executive actions, including homicide. 'They're all being exposed now,' he said, and noted that a forthcoming report from the Office of Professional Responsibility in the Justice Department will likely expose even more. They're 'starting to tread on what may disclose criminal conduct,' he said.

"Rather than going off 'helter-skelter' and conducting a 'fishing expedition,' said Specter, 'it seems to me that we ought to follow a regular order here....If there's reason to believe that these justice department officials have given approval for things that they know not to be lawful and sound, go after them.'"

Michael Isikoff writes for Newsweek: "The negative comments by Specter were especially significant because, as a moderate, the Pennsylvania senator's backing is often seen as key to winning bipartisan support for controversial proposals. As if to underscore those hurdles, a senior Obama administration official told Newsweek that, even in the wake of the new revelations, there was still little enthusiasm within the administration for the idea. 'It's a distraction,' said the official, who asked not to be identified talking about sensitive political matters. 'At a time when we are trying to get heath-care, energy and other proposals through -- and you need bipartisan support -- looking backward only generates more partisan opposition and noise.'"

Washington Post columnist Dana Milbank, who does not attend events with the intention of saying nice things, writes: "Chief Pursuer of Truth Patrick Leahy cut a lonely figure yesterday as he tried to persuade the Senate Judiciary Committee to endorse his plan for such a commission to probe the Bush administration's treatment of suspected terrorists.

"About half of the audience seats in the committee room were full. The press tables: mostly empty. Even the dozen demonstrators in orange jumpsuits got bored with the proceedings and left before the hearing ended. Of the 19 members of the committee, only three, including Leahy, the chairman, bothered to question the witnesses....

"The sparse attendance and the jocular opposition were solid signs that the Truth Commission was foundering on the shoals of indifference."

Here are some highlights from the hearing:

Leahy: "[N]othing did more to damage America's place in the world than the revelation that our great nation stretched the law and the bounds of executive power to authorize torture and cruel treatment. Now, when the last administration chose this course, it tried to keep its policies and actions secret. I think they did that because they knew they couldn't stand the scrutiny of an open public airing.

"How many times did President Bush go before the world to say that we did not torture and that we acted in accordance with law? Now, there are some who resist any effort to look back at all, others are fixated only on prosecution, even if it takes all of the next eight years or more and divides this country.

"Over the last month, I've suggested a middle ground to get to the truth of what went on during the last several years and in a way that invites cooperation. I believe that might best be accomplished through a nonpartisan commission of inquiry. I'd like to see this done in a manner that removes it from partisan politics. Such a commission of inquiry would shed light on what mistakes were made so we can learn from these errors and not repeat them, whether in this administration or the next administration."

Specter: "When this idea of a so-called truth commission first surfaced, I said it was unnecessary because you had a change in administration. You could look in the front door, ask for directions to the relevant filing cabinet, go in and open the drawer and find out anything you wanted to know. Well, that's been done. And it's being done to a greater extent....

"I would not mind looking backward if there's a reason to do so. If there's a predicate, if we have evidence of torture, torture is a violation of our law. Go after it. If there's reason to believe that these Justice Department officials have knowingly given the presidents cover for things they know not to be right and sound, go after them."

Democratic Senator Russell Feingold: "A crucial part of restoring the rule of law, in addition, is a detailed accounting of exactly what happened in the last eight years and how the outgoing administration came to reject or ignore so many of the principles on which this nation was founded....

"At the same time, there should not be a focus on retribution or pay-back, and such an effort should not be used for partisan purposes. That is why your proposal, Mr. Chairman, is so important. Your proposal is aimed at finding the truth, not settling scores."

Republican Senator John Cormyn: "The suggestion that this subject can be delved into somehow in a nonpartisan fashion to me asks us to suspend our power of disbelief...

"And to me, the idea that this so-called truth commission would somehow resolve the good faith disagreements that I think many of us have had and have divided the country over this subject is, I think, just asking us to believe in the tooth fairy -- that somehow this is going to settle the score."

Democratic witness Thomas Pickering, a former senior state department official: "It's not enough to say that America is discontinuing the policies and practices of the recent past. We must, as a country, take stock of where we have been and determine what was and is not acceptable, what should not have been done, and what we will never do again....

"Only great countries, Mr. Chairman, confident in themselves, are prepared to look at their most serious mistakes, to learn from them and to lead on forward. The United States has been and still is today, I believe, that kind of country."

Democratic witness Lee Gunn, a retired vice admiral: "We're not done, and that's why I think that we need a serious inquiry into the way we've behaved for the last seven years and the kind of orders we've given and decisions we've made. The enemy is still the enemy. The stress on our people, in uniform and out, who are charged with dealing with this enemy will continue. The pressure on our country and her leaders will remain. And we need to understand the circumstances under which choices were made by leaders in the past in order that we can anticipate those same circumstances or others in the future and avoid making what we consider to be mistakes."

Democratic witness John Farmer, a lawyer who served on the 9-11 Commission: "[T]here are some issues that touch so directly upon our identity as a people, that touch so directly upon the values that we profess, that no amount of internal bureaucratic review will suffice to allay public concern about the way its government has been conducting itself.

"In the absence of public fact-finding, people will be left to believe the worst, and the lack of public trust will ultimately undermine any effort to move forward. I have come to believe that our government's handling of detentions since 9/11 is such an issue."

Republican witness David B. Rivkin Jr., who served in the first Bush administration: "[A] commission of whatever variety to investigate the Bush administration activities and its officials is a profoundly bad idea, a dangerous idea, both for policy but even more importantly for me as a lawyer for legal and constitutional reasons....

"Far from seeking to establish a body to make recommendations in policy, as was the case, for example, with 9/11 commission, most commission supporters clearly want to establish a body that would engage in what would, in essence, be a criminal investigation of former Bush administration."

Republican witness and George Mason University Law Professor Jeremy Rabkin: "A lot of people are so revved up with indignation. Just go on the Internet. We can find this in published columns. People say, 'The Bush administration was guilty of war crimes. They are in the same category as notorious war criminals of foreign countries'. Now I think that is just wildly exaggerated and really inappropriate, but a lot of people feel that way. If you say we're going to have a truth commission, people immediately think, 'Oh, yes, that's what is done with war criminals when you can't prosecute them'....

"If you say truth commission people immediately think about these famous -- the Truth and Reconciliation Commission in South Africa, the Commission on Truth and Reconciliation in Chile.

"We are not in, remotely, that situation, and those countries that had to have these commissions because they couldn't have prosecutions, and they couldn't have prosecutions because the countries were so deeply divided and they had made promises in order to secure a peaceful transition. Peace was really in doubt in those countries. So they had to back off of prosecution and say, 'Well, we'll have a truth commission instead'. We're not in that situation. If people think that there should be prosecutions, well then there can be prosecutions."

Zachary Roth of TPM Muckraker has video of this exchange:

Rivkin: "I fundamentally disagree with the narrative that has been portrayed here of the Bush administration's alleged misdeeds. Yes, mistakes were made. Yes, some bad things happened. But compared with the historical base line of past wars, the conduct of the United States in the last eight years... has been exemplary, measured by any objective indicia of misdeeds -- abuse of detainees per thousand captured, excessive use of force per thousand troops in the field. So I don't see that at all."

Democratic Senator Sheldon Whitehouse's response: "I would suggest, Mr. Rivkin, that until you know, and we all know what was actually done under the Bush administration, you not be so quick to throw other generations of Americans under the bus and assume that they did worse."

Meanwhile, Rosa Brooks writes in the Los Angeles Times opinion column about the Office of Legal Counsel memos released on Monday: "How did such dangerously bad legal memos ever get taken seriously in the first place?

"One answer is suggested by the so-called Big Lie theory of political propaganda, articulated most infamously by Adolf Hitler....

"Big lies prevail because we can't bring ourselves to believe that our leaders could be so dishonest or deluded. And big lies can do terrible damage, of course. The Bush administration's big legal lies paved the way for some of the most shameful episodes in our history, including the official authorization of torture."

Even after the big lies collapse, she writes, they "leave little lies in their wake, changing the political discourse in enduring, difficult-to-detect ways.

"And that's the challenge we now face: tracing the barely visible effects of the Bush administration's now-repudiated big lies -- through our legal system, our constitutional system, our foreign policy -- and undoing all the damage."

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