Investigating Bush's Crimes

When the Obama transition team opened a questions referendum on its
popular change.gov website in December, one issue quickly soared to the
top. "Will you appoint a Special Prosecutor (ideally Patrick Fitzgerald)
to independently investigate the gravest crimes of the Bush
Administration, including torture and warrantless wiretapping?" And when
Obama stepped to the microphone at his first presidential press
conference, the question came again, this time with reference to a
Congressional call for a truth commission. Obama's response: "My view is
also 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." The answer was a slight
variation on the theme he has struck consistently since the final days
of his campaign. But what does it mean with respect to the criminal
accountability of Bush-era policy-makers? Many are inclined to hear
confirmation of their hopes--Republicans eager to see the disastrous
Bush years passed over without more fuss will stress the intention not
to "look back," while Obama supporters who embraced his strong criticism
of Bush's torture and surveillance policies will emphasize his
observation that "nobody is above the law." Others are displeased with
the ambiguity and press for a conclusive decision on the question.

But these exchanges give us the essence of the "no drama Obama" style:
he builds support with lofty rhetoric, giving some sense of his policy
objectives, but he consciously avoids committing himself to any
particular resolution. Obama is not being coy, I think. He means
precisely what he says. Accountability is not a part of his affirmative
agenda, least of all for his first hundred days, on which the long-term
success or failure of his presidential term may hang. An economic
stimulus package, healthcare initiatives and a series of foreign policy
challenges occupy center stage. Even in the Justice Department, Obama's
first objectives involve restoring the institution's self-confidence and
resurrecting its historical role in civil rights and voting rights
enforcement. It's not that Obama and his senior advisers see the
accountability issue as inherently unimportant--on the contrary, they
readily admit that it may be the key to long-term resolution of a series
of questions surrounding the abusive extension of presidential power.
But it is clearly a back-burner issue for them, something better
addressed near the end of his first term or, better still, during a
second term.

Obama's problem is that a growing number of Americans are concerned
about what the Bush administration did and are eager to press the issue.
The extent of public concern has been reflected in several recent public
opinion polls, including one in February by USA Today showing
that nearly two-thirds of Americans support investigations of the Bush
administration's use of torture and warrantless wiretapping; roughly 40
percent support criminal investigations.

And the shift in public opinion is not the only thing transforming the
environment in Washington on this issue. Susan Crawford, a Cheney
protegee and the senior Bush administration official
responsible for the military commissions in Guantanamo, told the
Washington Post's Bob Woodward that she refused to approve the
charges against Mohammed al-Qahtani because he had been tortured.
Torture is, of course, a felony under US law, and if multiple figures
are involved, it might well be "conspiracy to torture," a separate
crime. As ABC News reported and President Bush later confirmed, the full
book of proposed techniques to which Qahtani was subjected had been
approved by the National Security Council, headed by Bush. A senior
Obama Justice figure remarked after reading the Crawford interview that
it would be "impossible to sweep the matter under the carpet." That's a
view that seems to be shared by US allies and United Nations officials,
who, pointing to Crawford's admissions, are asking why the United States
has failed to introduce a criminal inquiry into how torture came to be
practiced as a matter of US policy. Articles 4 and 5 of the Convention
Against Torture require the United States to prohibit torture under
domestic criminal law and to investigate and prosecute incidents
in which it is practiced. The failure even to begin criminal
investigations has placed the United States in breach of its obligations
under the treaty, a point that even torture apologists like University
of Chicago Law School professor Eric Posner freely concede.

President Bush was widely expected to issue blanket pardons to those
involved in his interrogations and surveillance programs, but he did not
do so. Moreover, the Bush administration's tenuous claim to legality for
its torture programs was ended immediately after Obama assumed office,
when he directed a reassessment of interrogation policies and revoked
all of the relevant Bush-era Justice Department opinions with the stroke
of a pen.

Obama has been careful to avoid any suggestion that he or his senior
officers are directing a criminal investigation or prosecution of the
Bush-era torture enablers. He is right to do so. The criminal justice
system of a democratic state should not operate like a well-oiled
military machine taking its cue from the commander in chief. It requires
professional prosecutors who operate with critical detachment from
political officials when they pursue criminal investigations. Moreover,
the painful circumstances of the torture and surveillance programs,
particularly the fact that senior Justice Department officials were
complicit in their implementation at almost every step, make it an
ethically doubtful proposition for the Justice Department even to take
up the matter.

Up to this point, political influence has been used to block
accountability. Investigations are still under way at the Justice
Department and other agencies that touch on important aspects of the
Bush administration's detainee policy. One probe is looking into the
mysterious destruction of evidence of interrogations using highly
coercive techniques that was sought in pending criminal cases. Another
probe, nearly complete, is examining the circumstances behind the
crafting of the notorious torture memos in the black hole of the Bush
Justice Department, the Office of Legal Counsel. Under the Bush
administration, these and other investigations were often bottled up, as
senior officials refused to cooperate and the White House--which
functioned as the nerve center for Justice Department political
operations--refused to turn over documents. On occasion, they were shut
down directly by order of President Bush. One criminal investigation
launched by FBI agents at Guantanamo was ordered closed by the
head of the Justice Department's criminal division, Alice Fisher, who
may herself emerge as a target of a criminal investigation. Under the
transparency policies Obama announced during his first week, and under
the detainee policies he is busily putting in place, the administration
will unblock internal probes and mandate that federal employees,
including White House employees, cooperate with them. Realization that
this was in the works may have given rise to President Bush's January 16
"gag letters" issued to Karl Rove, Harriet Miers and Joshua Bolten,
instructing them to keep quiet in the face of a Congressional probe
about their dealings with the Justice Department.

Leading Congressional Democrats are proposing a way forward. In January
House Judiciary Committee chair John Conyers announced a blue-ribbon
panel to be appointed to conduct an investigation. He is also proposing
that the statute of limitations be modified to take the time pressure
off potential criminal investigators. Senate Judiciary Committee chair
Patrick Leahy put forth a proposal of his own a few weeks later in a
presentation at Georgetown University. Leahy pressed the idea of a
"truth commission," similar to the approach used in South Africa after
the fall of the apartheid regime. Bush administration officials who come
forward and offer a full accounting of their deeds could get immunity
for their testimony; those who keep silent or give false statements
could face prosecution. The Leahy and Conyers approaches share a number
of elements, including the notion that the commission would consist of
eminent people who are "above the political fray," would get subpoena
power and would be fully staffed and resourced. Both Conyers and Leahy
cite the 9/11 Commission as a model--a Congressionally authorized
commission backed by presidential authority, a hybrid model that would
eliminate some of the potential legal challenges that a purely
Congressional commission might face. Conyers is, however, far more
concerned about building a solid record that can form the basis of
prosecutions, whereas Leahy offers immunity as a reward for candor.

There are unmistakable signs of momentum in support of a commission
approach in Washington. Nancy Pelosi and other Democratic Congressional
leaders who once sang in the "let's forgive and forget" choir are now
signaling their support for a commission. But what about the Obama White
House? Following a meeting between Leahy and Greg Craig, Obama's White
House counsel, the White House was committed only to an ongoing
discussion.

But the commission approach may, depending on some critical details,
offer the best solution to the impasse. Moreover, it may well suit
Obama's needs for the commission to be the creation and initiative of
Congress rather than of his administration. It would allow a
comprehensive investigation without embroiling the White House in the
process. A commission would be in a position to put to rest some
persistent questions, particularly regarding how torture came to be
embraced as a matter of policy and whether the administration ever got
actionable intelligence from tortured suspects that could conceivably
offset the immense damage that torture has done to the moral authority
of the United States around the world. Most significant, if a commission
recommended a criminal investigation to the Attorney General, and if it
recommended appointment of a special prosecutor, that would deflect
suggestions that the process was "political."

On the other hand, investigative commissions do not actually do justice.
They cannot bring charges, and in the process of granting immunity for
testimony they can muddy the waters for a later prosecutor. Any
commission would need the advice and guidance of professional
prosecutors, who could help to assure that it would prudently exercise
the right to grant immunity and would avoid damaging future
prosecutions.

Criminal investigations and prosecutions might be avoided under the
Leahy approach and might be delayed under the Conyers approach. But
whatever approach is finally settled upon, it seems increasingly clear
that there will be multiple investigations: a commission of some sort,
Congressional hearings (which are promised in any event) and internal
probes within the government, which will likely be pursued delicately
and quietly.

Though the wheels of justice grind slowly, they grind exceeding small.
One year from today, it is likely that a large number of the secret
documents that form the backbone of Bush detention policy will be public
and many of their authors will have been publicly interrogated about
them. We will have a better sense of how torture crept into the American
interrogations system and whose authority was invoked to ram it through
in the face of legal hurdles once thought insurmountable. And one year
from today, we will probably still be asking whether any of the authors
of this national tragedy will or should be prosecuted. That outcome is
not likely to satisfy either side of the debate. But it may well be
consistent with the interests of justice, which demands a complete
exploration of the facts before anyone is held to account. That outcome
fully reflects the Obama style.