Senate Judiciary Committee chair Patrick Leahy, D-Vermont, deserves credit for pressing ahead with his modest proposal to establish a truth and reconciliation commission to review the assaults on the Constitution and general lawlessness of the Bush-Cheney administration.
As Leahy said at the opening of Wednesday's Judiciary Committee hearing on "Getting To The Truth Through A Nonpartisan Commission Of Inquiry":
Nothing has done more to damage America's place in the world than the revelation that this Nation stretched the law and the bounds of executive power to authorize torture and cruel treatment. The Bush administration chose this course, but tried to keep its policies and actions secret, knowing that they could not withstand scrutiny in the light of day. How many times did President Bush go before the world and say that we did not torture and that we acted in accordance with law?
There are some who resist any effort to look back at all, while others are fixated on prosecution, even if it takes all of the next eight years, or more, and further divides this country.
Over the last month, I have suggested a middle ground to get to the truth of what went on during the last several years, in a way that invites cooperation. I believe that that might best be accomplished though a nonpartisan commission of inquiry. I would like to see this done in a manner removed from partisan politics. Such a commission of inquiry would shed light on what mistakes were made so that we can learn from these errors and not repeat them.
That is a reasoned and responsible stance, of the sort we have come to expect from Leahy.
There is no question that the chairman is pushing further into the constitutional thicket than President Obama or Attorney General Eric Holder seem to be willing to go. And there is certainly some merit in borrowing from the wise experiments in accountability initiated by other countries -- especially South Africa, which used the truth-and-reconciliation-commission model to get those responsible for Apartheid-era crimes to acknowledge where the bodies were buried in return for the promise of immunity.
Unfortunately, Leahy's proposal to remove from the table the prospect of prosecution of officials who have committed crimes goes against the fundamental American precept that the rule of law must apply to all of us -- even presidents, vice presidents, attorneys general and White House aides.
Justice Anthony Kennedy was correct when he observed in the Supreme Court decision restoring the writ of habeas corpus that was undermined by the Bush administration and its congressional amen corner, that the Constitution is not something an administration is able "to switch... on and off at will."
Even Leahy admits that: "We must not be afraid to look at what we have done, to hold ourselves accountable as we do other nations who make mistakes. We must understand that national security means protecting our country by advancing our laws and values, not discarding them."
Unfortunately, the chairman's proposal for a commission switches off the rule of law by suggesting that the prospect of legal prosecution even in cases of extreme lawlessness -- and congressional action to address gross assaults on the Constitution -- in favor of "developing a process to reach a mutual understanding of what went wrong and learn from it."
The chairman of the Constitution subcommittee of the Judiciary Committee, Wisconsin Democrat Russ Feingold, suggests that it is unwise to simply give up on the prospect of prosecuting lawbreakers.
While Feingold compliments Leahy's initiative and says that "getting all the facts out about what happened over the last eight years is a crucial part of restoring the rule of law," the Senate's most outspoken defender of the Constitution warned today against going too far in surrendering the essential tools of the accountability process.
"On the question of immunity, I think we should tread carefully," told Wednesday's hearing. "There are cases that may require prosecution, and I wouldn't want a commission of inquiry to preclude that. Those who clearly violated the law and can be prosecuted should be prosecuted. On the other hand, the country will really benefit from having as complete a telling of this story as possible, so the ability of the commission to seek immunity for lower level participants certainly needs to be considered. How to do this is one of the complex questions that I hope can be explored in this hearing."
The American Civil Liberties Union agrees with Feingold's view that prosecutions should not be ruled out. The group is urging Holder and the Department of Justice to appoint a special prosecutor to conduct an investigation and, if warranted by the facts, to bring criminal charges against members of the Bush-Cheney administration who broke the law.
Additionally, the ACLU is calling for the creation of a congressional Select Committee that would work in conjunction with Leahy's truth and reconciliation commission. "(The)combination of both committees would be an effective format for congressional review of Bush administration policies," explains an ACLU statement on the issue, which recalls the important work of a committee headed by Idaho Senator Frank Church that investigated executive abuses in the 1970s. "The Select Committee would have the ability to allocate the necessary time and resources outside of the day-to-day demands of the standing committee structure. It would also bring together members from the relevant committees with jurisdiction over the relevant issues to share their expertise concerning the programs under review."
Says ACLU Washington Legislative Office director Caroline Fredrickson: "Americans' faith in government has been deeply. While a truth commission is a valid and admirable suggestion, Congress must go further. Congress' complacent approach to oversight has done our country irreparable harm and legitimized illegal and counter-productive intelligence programs. It's time for Congress to step up in a very real way and assert its role of oversight."
Leahy is not a bad player here.
He understands that there must be a measure of accountability if we are going to renew this country's commitment to the rule of law and to constitutional governance.
The Vermonter is asking the right questions: "(How) did we get to a point where we were holding a legal U.S. resident for more than five years in a military brig without ever bringing charges against him? How did we get to a point where Abu Ghraib happened? How did we get to a point where the United States Government tried to make Guantanamo Bay a law-free zone, in order to try to deny accountability for our actions? How did we get to a point where our premier intelligence agency, the CIA, destroyed nearly 100 videotapes with evidence of how detainees were being interrogated? How do we make sure it never happens, again?"
But the answer to those questions must, necessarily, be bolder.
It will take a greater measure of accountability than just Leahy's truth commission to "make sure it never happens again."
The ACLU's Fredrickson is right when she says: "The truth commission is a beginning for Congress to reassert its power, but it must go further."