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

A couple of weeks ago, I posted my thoughts about why we need an independent commission to examine recent counter-terrorism policies.  A number of people posted thoughtful comments and questions in response.  I didn’t get the chance to address all of these within the 7-day period for posting responses, so I’m writing this post to address some of the comments.

Chacounne asked two questions: "Do you not see a danger that following a commission the public will be told that the crimes of the Bush administration have been dealt with and the real damage done to real human beings will be ignored?" and "[H]ow will Americans and the rest of the world ever know what happened to those who were renditioned or disappeared if the focus of any commission is on systemic reforms?"

My response: It’s true, a commission won’t accomplish everything that needs to be accomplished here – but neither will criminal prosecution.   The point is, these are not mutually exclusive approaches.  You can support criminal prosecution to deal with specific cases and a commission to examine the systemic problems (unless you think that the abuses that occurred were just isolated acts by bad apples, in which case criminal prosecution alone would likely be sufficient).

As far as the damage that has been done to real human beings, that should absolutely be one of the commission’s focuses.  In fact, I think a commission would be invaluable in that regard.  Criminal prosecutors are tasked with proving that a law was violated, not with examining the lasting effects on the victim of the crime.  And prosecutions only reveal what happened in a particular instance or instances.  Only a commission could paint a comprehensive picture of the damage – human, diplomatic, strategic, etc. – inflicted by the policies in question.

•Nightprowlkitty said:  "[R]egardless of all the other honorable people and organizations who are signed on to this, the fact remains that those who did testify [at Senator Leahy’s hearing on the commission proposal], with the exception of you, have very questionable backgrounds.  I find that troubling and still do."

My response: With respect – and I do appreciate your thoughtful approach to this issue – I think you’re drawing the wrong conclusion from Senator Leahy’s selection of witnesses.  Senator Leahy must convince, not only those who believe that we should focus only on individual crimes and not on the broader systemic failures, but those who believe we should do neither of those things.  Those people are far more likely to be convinced by the witnesses he chose.  And, as someone who spoke personally with those witnesses, it is simply not the case that they are trying to aid in a "whitewash."  

I think the real lesson to be learned from the hearing witness panel is that the abuses that occurred are so egregious that even people who are not the "usual suspects" support an inquiry into what went wrong.  And there’s simply no getting around the fact that the "usual suspects" in the human rights world support it too.  The commission idea has broad support among the human rights community, including groups like Amnesty International and Human Rights First – groups that would sooner disband than lend support to a "whitewash."  

•In response to my point that criminal prosecutions are unlikely in part because OLC opinions provide a potential legal defense, Nightprowlkitty commented that "torture is a crime that has ‘no potential legal defense.’"  But there are, in fact, legal defenses to torture, just as there are legal defenses to all crimes in this country.  Under current law and practice, reliance on an OLC opinion could in some cases provide a legal defense even if Congress had not codified that defense into law (which it did).

That doesn’t mean the current system can’t be changed.  It absolutely should be changed.  In my view, that’s one of the most critical matters for the commission to examine.  We need to take a close look at OLC’s existing authorities, how they have been implemented, and the best way to revise those authorities to accomplish the twin objectives of allowing government employees to rely on good legal advice while ensuring that bad legal advice doesn’t insulate unlawful conduct.   Once again, a commission could do this – a criminal prosecutor could not.  

•Valtin asked for "evidence" that the commission would be less likely to engage in a "whitewash" if its mandate did not include recommending criminal prosecution in specific cases.  This isn’t an evidentiary point so much as a matter of common sense.  If the commission members see their role as teeing up criminal prosecutions, it is far more likely that they will feel pressured to engage in a "whitewash."  But if it is made clear that the commission has no role in determining whether prosecutions should occur, and that responsibility is removed from the members’ shoulders, they will almost certainly feel freer to go where the facts lead them.

In addition to the comments I’ve addressed here, one or two people suggested that the Church Committee, a committee that I served as Chief Counsel, accomplished nothing.  I will address this point, which I believe to be fundamentally mistaken, in a separate post in the near future.  In the meantime, thank you for reading – I appreciate the opportunity to engage in a real discussion on this important topic.  

Originally posted to Brennan Justice on Tue Mar 31, 2009 at 08:10 AM PDT.

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Comment Preferences

  •  post a tip jar! (3+ / 0-)
    Recommended by:
    MsSpentyouth, Valtin, Gary Norton

    The Brennan Center's previous diaries can be found here.  I'm a big fan of their work.

  •  Good to see you participating here..... (2+ / 0-)
    Recommended by:
    Valtin, Gary Norton

    How to deal with the possible crimes of the previous administration is the most difficult of issues.  It transcends the letter of the law, and must be viewed in the larger societal-political perspective.

    While the constitution is considered as the ultimate arbiter of legality; it is really public opinion, which when not fully appreciated, has the final word when taken to extremes in civil disorder.

    Reaching the best approach for our society, is to be found by watching Fox News and "24" as much as examining the nuanced strands of jurisprudence of Supreme Court precedence. The rare hypotheticals dramatized by programs such as "24" give a mandate for executive extralegal actions that are ignored at our peril.

    Our civil comity since our founding, broken by the civil war and the racial revolution of the 60s, has desensitized us to the fragility of all governmental systems. Government authority, whether of the left or the right, by its nature breeds the seeds of populist anger.  Historically, violent revolution is the norm, not the exception.

    I believe you are trying to effectively thread that needle of not condoning illegal acts at the highest places, yet limiting any action that will will trigger a more violent expression of partisanship.

    It's a difficult task, one appreciated by many.

  •  Thank you. There are some who (1+ / 0-)
    Recommended by:

    have an "all or nothing" approach to this issue which, if pursued, could well result in nothing. Your statement that an inquiry and prosecutions are not mutually exclusive is correct, but I would go further. It is unlikely there would be the political will for prosecutions in the absence of the type of public outrage one can hope will come from an inquiry. Yes, we would all like to believe that the right thing would be done in the absence of political support, but that is not a realistic expectation.

    The question of immunity for witnesses is a matter that must be addressed in that context. If we must immunize some in order to get the evidence needed to prosecute others that is a price that must be paid, as it is in many criminal cases. Above all, until the people of this country understand the outrages that were done in our name, there is little hope that we will be able to effect the kinds of changes needed to keep this from being repeated in the future.

  •  Dear Mr. Schwarz (2+ / 0-)
    Recommended by:
    Gary Norton, Nightprowlkitty

    Thank you very much for taking the time and effort to answer the questions posed to you in an earlier diary.

    As far as the question I asked about the trade-off between prosecutions vs investigation, and the proposed benefits of having a "Truth Commission" that is not aimed towards prosecutions, I must say that you make some telling points.

    More recently, Sen. Levin and the Senate Armed Services Committee completed an investigation into prisoner abuse by the Department of Defense, and especially the use of SERE techniques in torturing prisoners, and while the final report is not yet out (though supposedly due imminently), it is reported that Sen. Levin will recommend the results be communicated to the Department of Justice for further action. -- Can Senator Leahy's proposed committee promise to do the same if it finds conditions warrant this?

    I also appreciate the comments about the other panelists who were interviewed by the Judiciary Committee. I have never stated that any of them desire a "whitewash" for an investigation. However, I hope you can understand the dubiety with which these witnesses were received, when at least one of these witnesses has been linked to previous war crimes in Central America, and another to an agency currently associated with abuses in Afghanistan. (Please see my diary associated with these issues for further reference.)

    My fear is that with such "allies" the seriousness and depth with which any investigation will be pursued may be compromised, the better to maintain the support of key government or "insider" individuals.

    This is, in my mind, associated with a remark attributed to you at the Leahy hearing, when you indicated that the proposed investigation would not be another Pike Commission. I can only think that you were indicating this would not be another investigation that would dig too deeply or be too controversial. But I am open to hearing what you meant by that (or if you were misquoted).

    Finally, I am not one of those who believe the Church Committee did "nothing." Hardly so, as you could tell by reading one of my older diaries, The Most Important Congressional Investigation in U.S. History, or this other diary written around the same time.

    It would be a landmark if another Church-type Committee were to look into the abuses of government around abuse of presidential power, military and intelligence abuses (including wiretapping), and the use of torture. But it would also be a watershed in American history if war criminals were brought to justice. I will always remember that after Vietnam, there was essentially no accountability for the terrible crimes committed, and it is partly due to that failure that we are now in the situation we find ourselves.

    Again, I thank you for taking the time to answer your critics.

    War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

    by Valtin on Tue Mar 31, 2009 at 02:54:53 PM PDT

    •  I should add, though, Mr. Schwarz (1+ / 0-)
      Recommended by:

      That my opinions re the work of the Church Committee has become more critical in the past year or so, as I've learned more of the history of that work. In particular, I point you to the famous 1977 article by Carl Bernstein, The CIA and the Media. A definitive and full copy of this article had not been available on the net until recently. It has some devastating critiques about the way the Church Committee was "hoodwinked" by the CIA (emphases added).

      DESPITE THE EVIDENCE OF WIDESPREAD CIA USE OF journalists, the Senate Intelligence Committee and its staff decided against questioning any of the reporters, editors, publishers or broadcast executives whose relationships with the Agency are detailed in CIA files.

      According to sources in the Senate and the Agency, the use of journalists was one of two areas of inquiry which the CIA went to extraordinary lengths to curtail. The other was the Agency’s continuing and extensive use of academics for recruitment and information gathering purposes.

      In both instances, the sources said, former directors Colby and Bush and CIA special counsel Mitchell Rogovin were able to convince key members of the committee that full inquiry or even limited public disclosure of the dimensions of the activities would do irreparable damage to the nation’s intelligence‑gathering apparatus, as well as to the reputations of hundreds of individuals. Colby was reported to have been especially persuasive in arguing that disclosure would bring on a latter‑day "witch hunt" in which the victims would be reporters, publishers and editors....

      Some members of the Church committee and staff feared that Agency officials had gained control of the inquiry and that they were being hoodwinked. "The Agency was extremely clever about it and the committee played right into its hands," said one congressional source familiar with all aspects of the inquiry. "Church and some of the other members were much more interested in making headlines than in doing serious, tough investigating. The Agency pretended to be giving up a lot whenever it was asked about the flashy stuff—assassinations and secret weapons and James Bond operations. Then, when it came to things that they didn’t want to give away, that were much more important to the Agency, Colby in particular called in his chits. And the committee bought it."

      The Senate committee’s investigation into the use of journalists was supervised by William B. Bader, a former CIA intelligence officer who returned briefly to the Agency this year as deputy to CIA director Stansfield Turner and is now a high‑level intelligence official at the Defense Department. Bader was assisted by David Aaron, who now serves as the deputy to Zbigniew Brzezinski, President Carter’s national security adviser.

      Bader’s investigation was conducted under unusually difficult conditions. His first request for specific information on the use of journalists was turned down by the CIA on grounds that there had been no abuse of authority and that current intelligence operations might he compromised. Senators Walter Huddleston, Howard Baker, Gary Hart, Walter Mondale and Charles Mathias—who had expressed interest in the subject of the press and the CIA—shared Bader’s distress at the CIA’s reaction. In a series of phone calls and meetings with CIA director George Bush and other Agency officials, the senators insisted that the committee staff be provided information about the scope of CIA‑press activities. Finally, Bush agreed to order a search of the files and have those records pulled which deals with operations where journalists had been used. But the raw files could not he made available to Bader or the committee, Bush insisted. Instead, the director decided, his deputies would condense the material into one‑paragraph sum­maries describing in the most general terms the activities of each individual journalist. Most important, Bush decreed, the names of journalists and of the news organizations with which they were affiliated would be omitted from the summaries. However, there might be some indication of the region where the journalist had served and a general description of the type of news organization for which he worked....

      After several weeks, Bader began receiving the summaries, which numbered over 400 by the time the Agency said it had completed searching its files.

      The Agency played an intriguing numbers game with the committee. Those who prepared the material say it was physically impossible to produce all of the Agency’s files on the use of journalists. "We gave them a broad, representative picture," said one agency official. "We never pretended it was a total description of the range of activities over 25 years, or of the number of journalists who have done things for us." A relatively small number of the summaries described the activities of foreign journalists—including those working as stringers for American publications. Those officials most knowledgeable about the subject say that a figure of 400 American journalists is on the low side of the actual number who maintained covert relationships and undertook clandestine tasks.

      Bader and others to whom he described the contents of the summaries immediately reached some general conclusions: the sheer number of covert relationships with journalists was far greater than the CIA had ever hinted; and the Agency’s use of reporters and news executives was an intelligence asset of the first magnitude. Reporters had been involved in almost every conceivable kind of operation. Of the 400‑plus individuals whose activities were summarized, between 200 and 250 were "working journalists" in the usual sense of the term—reporters, editors, correspondents, photographers; the rest were employed at least nominally) by book publishers, trade publications and newsletters.

      Still, the summaries were just that: compressed, vague, sketchy, incomplete. They could be subject to ambiguous interpretation. And they contained no suggestion that the CIA had abused its authority by manipulating the editorial content of American newspapers or broadcast reports....

      The Agency would provide no more information on the subject. Period.

      The CIA’s intransigence led to an extraordinary dinner meeting at Agency headquarters in late March 1976. Those present included Senators Frank Church who had now been briefed by Bader), and John Tower, the vice‑chairman of the committee; Bader; William Miller, director of the committee staff; CIA director Bush; Agency counsel Rogovin; and Seymour Bolten, a high‑level CIA operative who for years had been a station chief in Germany and Willy Brandt’s case officer. Bolten had been deputized by Bush to deal with the committee’s requests for information on journalists and academics. At the dinner, the Agency held to its refusal to provide any full files. Nor would it give the committee the names of any individual journalists described in the 400 summaries or of the news organizations with whom they were affiliated. The discussion, according to participants, grew heated. The committee’s representatives said they could not honor their mandate—to determine if the CIA had abused its authority—without further information. The CIA maintained it could not protect its legitimate intelligence operations or its employees if further disclosures were made to the committee. Many of the journalists were contract employees of the Agency, Bush said at one point, and the CIA was no less obligated to them than to any other agents.

      Finally, a highly unusual agreement was hammered out: Bader and Miller would be permitted to examine "sanitized" versions of the full files of twenty‑five journalists selected from the summaries; but the names of the journalists and the news organizations which employed them would be blanked out, as would the identities of other CIA employees mentioned in the files. Church and Tower would be permitted to examine the unsanitizedversions of five of the twenty‑five files—to attest that the CIA was not hiding anything except the names. The whole deal was contingent on an agreement that neither Bader, Miner, Tower nor Church would reveal the contents of the files to other members of the committee or staff. unavoidable conclusion emerged: that to a degree never widely suspected, the CIA in the 1950s, ‘60s and even early ‘70s had concentrated its relationships with journalists in the most prominent sectors of the American press corps, including four or five of the largest newspapers in the country, the broadcast networks and the two major newsweekly magazines. Despite the omission of names and affiliations from the twenty‑five detailed files each was between three and eleven inches thick), the information was usually sufficient to tentatively identify either the newsman, his affiliation or both—particularly because so many of them were prominent in the profession.

      ... Bush began to urge members of the committee to curtail its inquiries in both areas and conceal its findings in the final report. "He kept saying, ‘Don’t fuck these guys in the press and on the campuses,’ pleading that they were the only areas of public life with any credibility left," reported a Senate source. Colby, Elder and Rogovin also implored individual members of the committee to keep secret what the staff had found....

      A senator who was the object of the Agency’s lobbying later said: "From the CIA point of view this was the highest, most sensitive covert program of all.... It was a much larger part of the operational system than has been indicated." He added, "I had a great compulsion to press the point but it was late .... If we had demanded, they would have gone the legal route to fight it."

      .... The dimensions of the program and the CIA’s sensitivity to providing information on it had caught the staff and the committee by surprise. The CIA oversight committee that would succeed the Church panel would have the inclination and the time to inquire into the subject methodically; if, as seemed likely, the CIA refused to cooperate further, the mandate of the successor committee would put it in a more advantageous position to wage a protracted fight .... Or so the reasoning went as Church and the few other senators even vaguely familiar with Bader’s findings reached a decision not to pursue the matter further. No journalists would be interviewed about their dealings with the Agency—either by the staff or by the senators, in secret or in open session. The specter, first raised by CIA officials, of a witch hunt in the press corps haunted some members of the staff and the committee. "We weren’t about to bring up guys to the committee and then have everybody say they’ve been traitors to the ideals of their profession," said a senator.

      Bader’s findings on the subject were never discussed with the full committee, even in executive session. That might have led to leaks—especially in view of the explosive nature of the facts. Since the beginning of the Church committee’s investigation, leaks had been the panel’s biggest collective fear, a real threat to its mission. At the slightest sign of a leak the CIA might cut off the flow of sensitive information as it did, several times in other areas), claiming that the committee could not be trusted with secrets. "It was as if we were on trial—not the CIA," said a member of the committee staff. To describe in the committee’s final report the true dimensions of the Agency’s use of journalists would cause a furor in the press and on the Senate floor. And it would result in heavy pressure on the CIA to end its use of journalists altogether. "We just weren’t ready to take that step," said a senator. A similar decision was made to conceal the results of the staff’s inquiry into the use of academics. Bader, who supervised both areas of inquiry, concurred in the decisions and drafted those sections of the committee’s final report. Pages 191 to 201 were entitled "Covert Relationships with the United States Media." "It hardly reflects what we found," stated Senator Gary Hart. "There was a prolonged and elaborate negotiation [with the CIA] over what would be said."

      Obscuring the facts was relatively simple. No mention was made of the 400 summaries or what they showed. Instead the report noted blandly that some fifty recent contacts with journalists had been studied by the committee staff—thus conveying the impression that the Agency’s dealings with the press had been limited to those instances. The Agency files, the report noted, contained little evidence that the editorial content of American news reports had been affected by the CIA’s dealings with journalists. Colby’s misleading public statements about the use of journalists were repeated without serious contradiction or elaboration. The role of cooperating news executives was given short shrift. The fact that the Agency had concentrated its relationships in the most prominent sectors of the press went unmentioned. That the CIA continued to regard the press as up for grabs was not even suggested.

      Long quote, Mr. Schwarz, to prove a point. Whitewashes can come in other flavors (maybe, graywashes?). The Church Committee is a fine case example of both the positive and negative examples of what can happen with this kind of governmental investigation.

      I'd like to see your response to the criticisms explicit and implicit in the article by Bernstein above regarding the workings of the Church Committee and certain important elements of CIA operations. Nothing could be more relevant to the proposed hearings on torture than these lessons.

      War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

      by Valtin on Wed Apr 01, 2009 at 02:20:53 PM PDT

      [ Parent ]

  •  Thank you ... (1+ / 0-)
    Recommended by:

    ... for your insightful responses, Mr. Schwarz.

    I would like to correct any impression I may have left that I felt the Church commission didn't accomplish anything.  Until Bush, it certainly did ... and I believe that no matter what was put into place, nothing can withstand deliberate criminality, as I believe was the case with Bush/Cheney.

    I also felt that part of this problem was that the Pike Committee Report was classified and we never did get to the bottom of what was going on with the CIA (as well as all our intelligence agencies).  In other words, we didn't go far enough and now we are seeing the results.  I meant no disrespect to the good work you and others have done.

    As far as torture being "defensible," I'm well aware that the Bush misAdministration did all it could to provide legal cover for its actions, including Congressional legislation and memos by Yoo, Bybee, etc.

    I don't recall the legal term, but several folks have pointed out, and I agree, that some crimes are inherently indefensible and torture is one of them.  So I think there is a distinction to be made over the fact that yes, one can come up with infinite legal defenses for anything and that torture is indefensible.

    As for the members of the panel, I agree with Valtin that there's a danger unacceptable compromises may be made in order to get everyone "on board" when it comes to investigation.

    Again, I thank you for responding and look forward to your further diaries here at Daily Kos.

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