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After Leahy’s Hearing on a Commission of Inquiry

By Frederick A.O. Schwarz, Jr., Chief Counsel of the Brennan Center for Justice

I had the opportunity to testify last week before the Senate Judiciary Committee’s hearing on Senator Leahy's proposal for an independent commission to examine U.S. counterterrorism policies.  Engaging in some kind of investigation into these policies is a priority for a clear majority of the public, according to a recent poll --  just as it is to many writers and readers here at the Daily Kos, as demonstrated by the journalism and debates on the issue here over the past few weeks. Based on my experience as chief counsel to the Church Committee, I believe that a fair, impartial investigation by an independent commission could yield enormous benefits -- not just in terms of restoring the rule of law, but in terms of making our policies better and our country safer.  

Of course, not everyone is convinced that this is the right approach.  There is plenty of room for good faith disagreement over how to proceed.  However, it is crucial that we conduct this debate accurately and openly, and some recent arguments against the commission are based on misconceptions and false premises.  Even Senator Leahy, who was exceedingly gracious to all the witnesses throughout last week’s hearing, noted -- in response to an objector -- that it felt like there were more "straw men" in the room than at any farm in Vermont.  Other witnesses in favor of a commission of inquiry included Thomas Pickering, a former senior state department official, Lee Gunn, a retired vice admiral, and John Farmer, a prominent attorney who served on the 9/11 commission.

So while my public testimony states the affirmative case for a fair, impartial commission, I would like to tackle some of the misconceptions that are now circulating in the media and public debates.  And since this is an interactive civic forum, readers can add more suggestions in the comments, and I will try to respond to some of them:

Misconception 1:  A commission of inquiry examining post-9/11 policies would "criminalize policy differences."

Truth:  One of the main reasons we need a commission is to actually determine whether these were merely "policy differences," or whether they went beyond that and undermined the rule of law.   The unprecedented, unconstitutional claim that the President can unilaterally override the First and Fourth Amendments in secret, for example, is not a difference of "policy." The Bush administration itself acknowledged that by rescinding its legal opinion in its last days.  Other issues that clearly go beyond "policy differences" is whether President Bush's warrantless wiretapping violated the Foreign Intelligence Surveillance Act and which of the interrogation techniques employed by the CIA constituted torture under U.S. law.

Misconception 2:  Establishing an independent commission of inquiry is a "partisan" move.

Truth:  The rule of law is not a partisan issue.  It is a founding principle of our democracy that has guided Democrats and Republicans throughout our country's history.  That's why the independent commission should not limit itself to examining the actions of President Bush's administration. In a recent interview with the New York Times, Senator Leahy told Scott Shane that the "temptation to abuse powers in a crisis is bipartisan, and the commission's review should include the role of Democrats in Congress in approving the Bush policies."

I would add that the commission should look at whether any of these policies pre-dated the Bush administration or have continued into the Obama administration.

Misconception 3:  The proposed commission is "unprecedented" and would set in motion a cycle of political recrimination.

Truth: On many occasions in our nation's history, serious allegations of unlawful executive actions were met with investigations by special congressional committees or independent commissions.  Nonetheless, most enjoyed broad bipartisan support, and no "cycle" of investigations occurred.  

Misconception 4:  A commission is just a substitute for (or a precursor to) criminal prosecutions.  

Truth:  No matter what the Justice Department does or does not do regarding prosecutions, we need a commission. We don’t need one to find out whether individual actors violated the law in specific cases. Rather, we need a commission to assemble a full picture of the government's counter-terrorism policies and to examine which policies were proper and which were improper. And more specifically, a commission would examine why those improper policies veered off course and consider how to bring them back in line with the rule of law and how to prevent similar abuses in the future. These objectives simply would not be addressed by criminal prosecutions.  

Furthermore, it is primarily opponents of the commission who now mistakenly argue that a commission is tantamount to prosecution, as this Washington Independent article explains, not the actual experts and policymakers backing the commission proposal.

It was a pleasure to be back in the Senate, focusing on similar issues that I dealt with more than 30 years ago on the Church Committee, which investigated intelligence agencies' excesses. It was especially good to be back with Senator Leahy, who seems very determined to make this commission of inquiry happen.

Originally posted to Brennan Justice on Mon Mar 09, 2009 at 07:36 AM PDT.

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Comment Preferences

  •  And this commission's "Single Bullet Theory?" (4+ / 0-)

    I'm waiting for a whitewash of historic proportions.


    Happy little moron, Lucky little man.
    I wish I was a moron, MY GOD, Perhaps I am!
    -Spike Milligan

    by polecat on Mon Mar 09, 2009 at 08:02:36 AM PDT

  •  I have several deep concerns ... (7+ / 0-)

    ... about this Commission.

    Did a little research on both the Church and Pike Committees.  The Church Committee's work led to FISA, which was easily and completely eviscerated by the Bush misAdministration.  The Pike Committee report is still classified.

    Americans need to know the truth about what our intelligence agencies have been up to.  According to Valtin, even those who were in favor of a Commission during the Leahy hearing have dubious credentials:

    Rivkin, Rabkin, Pickering, Nunn, and Frederick A.O. Schwarz, Jr. Besides Schwarz, who works with the distinguished legal civil liberties-oriented Brennan Center for Justice, this was a stacked list of witnesses, with the majority supporters of the "war on terror" and "homeland security" schemes that are anti-democratic. In the case of Pickering, we have some implicated in collaboration with those who committed exactly the same types of crimes the commission is supposed to address. What a farce! I cannot think of words of base calumny strong enough.

    You and your Center are exempt from that charge, but the rest have very questionable histories on this subject.

    I want to know the truth of what happened, about torture, about illegal domestic surveillance and a whole host of other egregious actions during the past eight years.  I am aware that many abuses have occurred even before then.

    I am not convinced that we will get at the whole truth via a Commission.

  •  Only prosecution will serve the dual purpose (6+ / 0-)

    of fact-finding and deterrence. I would support Congressional hearings, provided that they did not in some way interfere, forestall, or nullify some aspect of prosecution.  That means, no grants of immunity, except to low-level operatives where this leads directly to exposure and prosecution of the high-level command authority.  But, we already know the identity of the top-tier officials and exactly what they did, because this has been documented and admitted to by Bush and Cheney.  So, a Commission is not really essential to fact-finding.

    Second, given the fact that the blue ribbon commission of inquiry approach -- post-Watergate, Iran-Contra, 9/11 Commission -- has not worked in the past to deter further crimes of state, they do not serve as any sort of substitute for a Grand Jury or Special Prosecutor.  

    The part of the public that has real interest in these matters is already well-informed about the particulars.

    Therefore, I must ask, sir, what further purpose does a commision of inquiry serve without any assurance that there will be prosecution for known and documented crimes?

    •  The Congressional Iran/Contra investigation (3+ / 0-)
      Recommended by:
      leveymg, Nightprowlkitty, maryabein

      resulted in the convictions of both North and Poindexter getting overturned, due to their testimony.

      Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

      by skrekk on Mon Mar 09, 2009 at 09:17:43 AM PDT

      [ Parent ]

      •  Only because they perjured themselves (2+ / 0-)
        Recommended by:
        dqueue, Nightprowlkitty

        No one, including Mitchell during the Watergate hearings, was ever convicted of any underlying crime of state.  See,

        It's time to set precedent.

        •  Perjury is all you'll get before Congress. (1+ / 0-)
          Recommended by:

          It's simply not the place for a prosecution.

          Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

          by skrekk on Mon Mar 09, 2009 at 10:19:48 AM PDT

          [ Parent ]

          •  Exactly (4+ / 0-)

            That seems to be Mr. Schwarz's point: these hearings are neither a precursor to prosecution nor an independent attempt at assessing accountability.  That's precisely the problem that so many of us have with this Inquiry as it's been described.  

            The purpose, he says, isn't really even fact-finding.  The sole point of looking into the Bush Administration's actions, he writes, is to find out "whether these were merely "policy differences," followed by some sort of panel discussion about "why those improper policies veered off course".  Mr. Schwarz won't even call them what they clearly are, crimes.

            Congress certainly has the power as part of its oversight function to determine whether the Executive branch carried out the law in less than a lawful manner.  That much is already painfully obvious.

            The Senate and House also have the power under the Constitution to conduct full factual investigations into any lawbreaking or official improprieties.

            Similarly, if there are questions about whether present law presents impediments to prosecution, as Chairman of the Judiciary Committee, Senator Leahy should draft any necessary amendments and push them through.

            But, if there is no real effort made to uncover the offenses that have been committed and treat them as crimes, then the exercise becomes another opportunity for official Washington to evade responsibility.

            There seems to be a lack of political will to impose accountability.  What we have inherited is a government that refuses to do anything of consequence about these difficult cases.  Until that happens, this is a government that remains both post-constitutional and post-legal.  Now, that's a topic the Inquiry should explore.

  •  I recced this because we ALL need to keep (2+ / 0-)
    Recommended by:
    On The Bus, Nightprowlkitty

    it alive as a topic for discussion.

    Other than that, my attitude is:

    1. lay
    1. crawl
    1. walk
    1. run
    1. then be able to go anywhere you need to go.

    We are currently, vis-a-vis the past admin misdeeds, in the

    1. stage.

    I think that an investigation would be a 2)...

  •  Thank You, Sir, for Diarying eom (3+ / 0-)
    Recommended by:
    leveymg, On The Bus, Nightprowlkitty
  •  Mr. Schwarz, I had two minor concerns about (3+ / 0-)
    Recommended by:
    polecat, leveymg, Nightprowlkitty

    your testimony (which was otherwise exemplary):

    1. You stated that CIA officers directly involved in torture shouldn't be prosecuted if they received orders to do so.  You might argue as a policy matter that it's unfair to prosecute those who were simply following orders (albeit orders they likely knew to be illegal), but from a legal standpoint it's hogwash.  I wonder if you've read article 2.3 of the CAT:

    An order from a superior officer or a public authority may not be invoked as a justification of torture.

    1. John Cornyn asked whether the "rules had changed" with the new administration, and I really, really wanted you to respond that torture was already illegal, and that neither domestic nor international law regarding torture had changed - the prohibitions against torture had been settled law for quite some time.

    Other than that, great job, and thanks for posting here!

    Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

    by skrekk on Mon Mar 09, 2009 at 09:10:42 AM PDT

  •  If someone can tell me with a straight face (2+ / 0-)
    Recommended by:
    leveymg, heart of a quince

    that the FISA law deterred Bush 43 or that 90% of the Commission's Report won't be redacted out then I'll listen to the proposal.  Otherwise just assign a special prosecutor...I don't care if illegal activity was done under Reagan, Bush 41, Clinton or Bush 43; if the statute of limitations hasn't run out I want the offenders to be perp walked to the nearest jail. Or even with the Obama Administration.  

  •  History tells us that Commissions such as this (4+ / 0-)

    are set up to aid and abet cover-ups. We've seen this all before whether it was the pardon of Richard Nixon for his numerous and egregious crimes during Watergate, or the government giving Ronald Reagan a free pass during the Iran-Contra scandal, or Bill Clinton who while charged with willfully providing perjurious, false and misleading testimony to a grand jury; making corrupt efforts to influence the testimony of witnesses; impeding the discovery of evidence; and preventing, obstructing and impeding the administration of justice, was nonetheless acquitted by the Senate with a 50-50 vote.

    Now we have a former president whose abuses of power go far beyond any of his predecessors based, in no small part, to government's willingness to hold him and those before him above the rule of law. In so doing government has corrupted the vision of John Adams, a founding father of this nation: We are no longer "a nation of laws, not men," we’ve become the opposite – a nation of men, not laws. This is the message the government is sending to the country and to the world with its "Truth and Reconciliation Commission." The Commission is not seeking Truth, the Commission is looking for a way out and the American people know it. For if the rule of law does not apply in the case of George W. Bush, then the rule of law means nothing and all Americans should be held above it.

    After all, the Bush adminisration did not make "mistakes," a term used frequently during last week's "Senate Judiciary Committee on Establishing a Truth Commission," and seeking justice is not "payback," another phrase reiterated during last week's Judiciary hearing. My God, the Executive Branch willfully worked to give George W. Bush authoritarian rule of this nation. He was the de facto dictator of this country for eight years. Didn't anyone on the Judiciary Committee read the recently released memos from the DOJ?

    For the preservation of justice, for the loss of our troops and the untold thousands of civilians who’ve died in Iraq because of the Bush administration's lie-driven foreign policy; for the millions of Americans whose Civil Liberties were stripped from them, shrouded in the banner of National Security; for the sake and preservation of our Constitution, it is time for the Judiciary to either seek the Truth for the purpose of criminal investigation and prosecution, or step aside and have the US Office of Special Counsel investigate and prosecute the crimes of the Bush administration. This is the will of 62% of the American people. The consent of the Governed has been given. Secure our rights and do your job. No more smoke and mirrors.

    •  Well said, on several points (2+ / 0-)
      Recommended by:
      polecat, Nightprowlkitty

      It would be appreciated by all if Mr. Schwarz gave some indication that he reads the more thoughtful responses to his post.

      This is an interactive forum, not a bulletin board.

      No more smoke and mirrors, indeed.

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