Partisan Politics and the Accountability Commission

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Partisan Politics and the Accountability Commission

Notwithstanding commanding support in Congress and with the American public, the creation of an Accountability Commission is now being held up by the Obama White House. Critics of the concept have consistently argued that it would be "just politics," a vehicle for Democrats to pursue political retribution against the Bush Republicans. But as I learned in an interview with the New Yorker's Jane Mayer, published earlier this week at The Daily Beast, the truth is just the opposite: pure partisan politics is the biggest obstacle to creation of a commission. Mayer told me that CIA chief Leon Panetta had argued strongly for creating a commission but was blocked by the President's two senior political advisors, David Axelrod and Rahm Emanuel, who both believed that the Commission would drive the Party of No to create a massive stink. Obama's affirmative agenda-in particular, his proposed health insurance reform-would suffer as a result. Panetta says he abandoned the effort in the face of their resolute tactical opposition.

The issue led to cognitive dissonance in Obama's latest high-profile speech. At the National Archives, he insisted that "our existing democratic institutions are strong enough to deliver accountability." Yet only seconds later, he was expressing concern that Congress would get bogged down in its study of the question. He can't have it both ways. Obama is the consummate politician of reason, but on this point his explanations don't add up. In fact, the Accountability Commission alternative is necessary precisely for the reasons he cites: it would allow the issue to be fully explored while it is removed from the to-and-fro of daily politics. It would insure that the issue would not complicate the handling of his own legislative agenda. Obama's real reasons for opposing the initiative are pure partisan political tactics, and that can't be sold so smoothly in a public address.

Across the Atlantic, in Britain, Prime Minister Gordon Brown reacted to pressure from Conservative lawmakers on Monday by agreeing to a formal inquiry much along the lines proposed. The New York Times reports:

After years of delay, the British government said Monday that it would go forward with a wide-ranging inquiry into the country's role in the Iraq war, an issue that has caused deep political divisions and protest since American and British troops overran the country in 2003.

One of the major aims of the British inquiry is to assess the extent to which Britain was misled by the Bush Administration and how U.S. policies, including the torture and abuse of prisoners, spread to British troops in Iraq and Afghanistan. Given the sensitivities of the Special Relationship, Gordon Brown insists that the inquiry proceed confidentially-a demand that has infuriated many parliamentarians who had been pushing for the probe. Nevertheless, the British move shows a far more responsible reaction to the issues than have come so far from the Obama White House.

The concept of an Accountability Commission isn't about to fade. In fact, developments this summer will put the spotlight on the question. On Friday, the Administration is required to release the CIA Inspector General's report on the CIA's implementation of the Bush Program. That report will show that the CIA was administering torture techniques in a fashion inconsistent with the guidance given by the Bush torture lawyers at the Justice Department-and that the latter kept changing their advice to approve what the CIA had in fact done. If fully released, the CIA IG report may contradict Vice President Cheney's claims about "actionable intelligence" having been gained through the use of torture, and it may express the view that the torture techniques are unlawful, providing more evidence that the Bush figures who ran the program were warned in real time of the possible criminal law consequences of their conduct.

Later in the summer, the Justice Department's own internal ethics probe will be released. It will detail that Vice President Dick Cheney was the man who drove the entire torture program, pressuring Justice Department lawyers to issue a stream of "get-out-of-jail" free cards to those who ran the program for him when they expressed concern about the prospect of prosecution. It will also show senior figures in the Justice Department behaving just like a bunch of mafia consigliere, fully cognizant of the fact that if their dealings are exposed, they may go to jail for them. They rest their hopes on pure politics to save themselves.

So far, Obama's Justice Department is doing little to dispel the concerns raised by the Bush team about politically directed decisions. The most striking example of the Holder Justice Department's ongoing politicization comes in precisely the area of torture accountability. Obama and his political advisors, applying a blatantly partisan political calculus, have now repeatedly expressed their view that there should be no criminal investigation of this issue. They say that Holder will decide these matters according to the law, but Holder seems fully prepared to take his political cues from the White House. That means, as John Dean has just pointed out in a typically insightful column, that a decision not to investigate has been taken by default.

Dean gives us a series of strong new arguments for accountability, taken from the late Samuel P. Huntington's study of Latin America's struggle to overcome its legacy of authoritarianism, The Third Wave. Here is Dean's distillation of the Huntington thesis:

(1) "Truth and justice require it." The Obama Administration "has the moral duty to punish vicious crimes against humanity."

(2) "Prosecution is a moral obligation owed to the victims and their families."

(3) "Democracy is based on law, and the point must be made that neither high officials nor [the] military ... are above the law." Citing a judge who was critical of a government amnesty proposal, Huntington added: "Democracy isn't just freedom of opinion, the right to hold elections, and so forth. It's the rule of law. Without equal application of the law, democracy is dead. The government is acting like a husband whose wife is cheating on him. He knows it, everybody knows it, but he goes on insisting that everything is fine and praying every day that he isn't going to be forced to confront the truth, because then he'd have to do something about it."

(4) "Prosecution is necessary to deter further violations of human rights by [future] officials."

(5) "Prosecution is essential to establish the viability of the democratic system." If the Republicans and Bush/Cheney apologists can prevent prosecution though political influence, democracy does not really exist.

(6) Even if the worst crimes are not prosecuted, "at a very minimum it is necessary to bring into the open the extent of the crimes and the identity of those responsible and thus establish a full and unchallengeable public record. The principle of accountability is essential to democracy, and accountability requires ‘exposing the truth' and insisting ‘that people not be scarified for the greater good...'."

There is no doubt that Axelrod and Emanuel are dispensing smart partisan political advice to Obama when they tell him to can the idea of an Accountability Commission and to block any criminal investigation. But their advice is also lethal to the nation's democratic traditions and to our Rule of Law tradition. Obama's presidency has so far been marked by a series of compromises in the interest of partisan political expediency. That is very far from what he promised his voters and the country.

 

Scott Horton

Scott Horton is a Contributing Editor of Harper's Magazine and lectures at Columbia Law School.  He is also a member of the board of the National Institute of Military Justice, the Andrei Sakharov Foundation, the EurasiaGroup and the American Branch of the International Law Association.

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