Sen. Leahy, please accept my genuine thanks for choosing to make your case on Daily Kos and also accept -- in the spirit of vigorous debate befitting a democracy -- my rejection of your proposal for a Truth and Reconciliation Commission.
By way of background, I am an international human rights lawyer educated at NYU Law. I have worked on issues related to transitional justice in a number of countries including the Former Yugoslavia, Rwanda, Liberia, and Peru. I have lived in Southern Sudan, a post-conflict country.
What is this "transitional justice" of which I speak? It is the phrase we international lawyers use to refer to mechanisms whereby a new regime holds a previous regime accountable for the latter's abuses of human rights and the rule of law. Transitional justice has, unfortunately, become a burgeoning speciality. A lot has been written, and a lot has been learned from the practical transitional justice experiments of the last 20 -- and especially the last 10 -- years.
One of the things we have learned is that trials work. Effective trials of top former officials have failed to destabilize weak/emerging democracies like the Former Yugoslavia, East Timor, Rwanda, and Sierra Leone. If pursuing criminal justice didn't rip apart those countres and shatter their weak democracies, will it cause harm to ours?
But perhaps I am misreading the implication of your proposal. Perhaps you favor a truth commission because you think it's an intrinsically better option, and not because you think trials are somehow dangerous. If that is the case, you have adopted the view of a small but vocal minority among those who think about this topic. Generally speaking, arguments in favor of truth commissions are pragmatic ones. The wrongs are too pervasive; the numbers of individuals responsible for them would overwhelm the court system. The incoming regime lacks the political capital to undertake prosecutions, but a truth commission might be an acceptable comprimise. The victims need to be given an opportunity to tell their story, which only a few would be able to dio in court proceedings.
None of these apply here. A small elite is responsible for setting criminal policies. Their trials could be easily accomplished. Any contention that Obama, or US democracy, lacks the political capital to undertake prosecutions must be laughable. Is our political foundation more shaky than the Former Yugoslavia's in 1994? Rwanda's in 1995? Sierra Leone's and Liberia's now, at this moment, when former Liberian President Charles Taylor is on trial for crimes against humanity? I beg to differ. And while the stories of the victims of our torture campaigns, for instance, should absolutely be told, the crimes committed on their bodies are not the Bush regime's worst.
George Bush, Dick Cheney, Donald Rumsfeld, Paul Wolfowitz, Condoleeza Rice, and the rest of the gang so familiar to Kossacks subverted and perverted the constitutional fabric of this coutry. In so doing, they committed numerous felonies that we know about and likely many, many more that we do not. Every American was their victim. Part of the restoration of the rule of law and not men in this country requires that they be held to the same standards, criminal standards, as the rest of us.
I would like to close by discussing the update to your diary, which I find to be disingenuous:
On the issue of immunity & prosecutions, a failed attempt to prosecute for this conduct would be the worst result of all as it could be seen as justifying and exonerating abhorrent actions. Given the steps Congress and the executive have already taken to shield this conduct from accountability, any prosecution could be difficult. What's more, prosecutions could take 5, 10, or more years to accomplish -- and we need to get to the truth much more quickly.
A failed attempt to prosecute would send the signal to the world that we uphold the rule of law, which includes due process, NOT a conviction, for alleged criminal acts. Of course we on Daily Kos would want to see convictions, but few if any of us think that a verdict of innocent is a justification or exoneration. A condemnation of the justice system, perhaps, but not a beatification of the accused. See, e.g., O.J. Simpson.
Also, you greatly exaggerate the amount of time the trials might take. The trials of former leaders like Milosevic in the International Criminal Tribunal for the Former Yugoslavia, Fujimori in the courts of Peru, and Charles Taylor in the Special Court for Sierra Leone is 1.5-2.5 years. Those courts are notorious for their slowness. Surely our vaunted judicial system could move faster? Especially if we conducted the trials in parallel?
By the way, note the above: Peru is presently -- right now -- trying its former president in Peruvian (NOT international) court. Does Peru have a stronger democracy than the United States of America?
Of course, this avenue would be pursued in consultation with the Justice Department and would not rule out prosecution in appropriate cases, particularly for perjury before the commission -- or for those individuals who choose not to testify before the commission, but are implicated by others. We could certainly prosecute those people.
This paragraph cleverly elides the question of immunity. If you would NOT grant immunity in exchange for truthful testimony before the Commission I urge you to say so. Much of the opposition to your proposal would likely evaporate. If you WOULD grant such immunity, please stop hiding behind evasions about prosecuting perjurers or those who don't testify. Those two groups together are highly unlikely to amount to more than a fraction of those granted immunity. This is self-evident, I would think.
No Attorney General should make a commitment not to prosecute for any crime without having investigated the issue. Some asked Eric Holder to commit not to prosecute for anything that happened on President Bush’s watch. That is a pledge no prosecutor should give, and Attorney General Holder did not. My proposal does not ask for Attorney General Holder to make any such commitment.
Let me help you, Senator, rewrite that paragraph a little more clearly: My proposal does not ask the Attorney General to do things that other people have asked him to do, things that are entirely unrelated to my proposal, things that have no bearing on whether Commission would grant immunity to war criminals in exchange for truthful testimony.
P.S.: International law prohinits impunity for war crimes, crimes against humanity, and torture. So any immunity we grant in a TRC would further demonstrate our contempt for the laws of nations and undermine our efforts to promote justice and democracy abroad.
Overall? Not great.