Answering the Past

This week, writing about the possibility that there might be some uncovering of the Bush/Cheney NSA wiretapping scheme in the pending Al Haramain case, I said this:

So it's very possible that we could finally have some light shed on the warrantless wiretapping program in this case. That should not, however, preclude Congress from finally conducting its own investigation in the form of a reconstituted Church Commission and the Obama administration from cooperating fully with that investigation. There really isn't a way for Congress to recover everything it lost in its myriad capitulations to a lawless administration. But a bright light shined on the whole affair might just keep it from happening yet again.

To which digby, in a perfectly reasonable and thoughtful post said:

Sadly, if history is any indication, that is highly unlikely to happen. Over the holidays, at the behest of Rick Perlstein, I read a book called Challenging the Secret Government: The Post-Watergate Investigations of the CIA and FBI by Kathryn S. Olmsted. I had written something similar to what McJoan says above and he thought I should look more closely into the results of the Church (and Pike) committees and what lessons the congress and the media have likely drawn from them.

I haven't read the Olmstead book, but the excerpt digby quotes is indeed discouraging:

Few barriers seemed to stand in the way of such reforms. The liberal, post-Watergate Congress faced an appointed president who did not appear to have the strength to resist this "tidal shift in attitude," as Senator Church called it. Change seemed so likely in early 1975 that a writer for The Nation declared "the heyday of the National Security State', to be over, at least temporarily.

But a year and a half later, when the Pike and Church committees finally finished their work, the passion for reform had cooled. The House overwhelmingly rejected the work of the Pike committee and voted to suppress its final report. It even refused to set up a standing intelligence committee. The Senate dealt more favorably with the Church committee, but it too came close to rejecting all of the committee's recommendations. Only last-minute parliamentary maneuvering enabled Church to salvage one reform, the creation of a new standing committee on intelligence. The proposed charter for the intelligence community, though its various components continued to be hotly debated for several years, never came to pass....

The targets of the investigation had the last laugh on the investigators. "When all is said and done, what did it achieve?" asked Richard Helms, the former director of the CIA who was at the heart of many of the scandals unearthed by Congress and the media. "Where is the legislation, the great piece of legislation, that was going to come out of the Church committee hearings? I haven't seen it." Hersh, the reporter who prompted the inquiries, was also unimpressed by the investigators' accomplishments. "They generated a lot of new information, but ultimately they didn't come up with much," he said.

Reform--change--is a helluva clarion call for an election. "Throw da bums out!" has been the rule in the last two election cycles, just as it was in 1974 and 1976. Democrats swept Congress in 1974, the Watergate class, they were called. And in 1976, a plain-spoken, humble governor from Georgia--the most outsiderish and most aw-shucks honest politician anyone could imagine gained the White House. America threw the bums out and turned the page, leaving just a handful in Congress--Frank Church being one of them--not relieved to have the nation's "long nightmare" behind them, but profoundly disturbed by where that nightmare came from.

Not too many politicians are willing to go around lifting up all those rocks on the property they've been put in charge of, to see what's crawling around down there. And they're even less likely to go poking around in the darker corners where people they consider their colleagues might dwell. It is the very rare politician that is willing to take on all of the risks associated with actually being a reformer. While many have the requisite principles to do so, few have the drive and the intestinal fortitude to do it. It's not a fun job, and you don't make many friends in doing it.

In looking back at the Watergate era, the glaring problem Olmstead points out is that it didn't prevent another executive with visions of imperial power from trying to enact just that vision. (Actually, it was one of the same executives--Dick Cheney, a Nixon era White House staffer who came into the executive branch hell bent on destroying what limitations the Congress had enacted post-Watergate.) But that's not the fault of the reformers. If anything, it's the fault of those who blocked real reform. It is quite possible that the abject lawlessness of the Bush administration could have been curbed had there been strong institutional, Congressional barriers in place--barriers that should have come as a result of the Church and Pike commissions. Had a real, functioning, standing committee on Intelligence--with professional investigative staff--been in place, there might have been a check on the Bush administration.

Part of our national character is what is generally called "optimism," but which all too often is actually being hell-bent for the future so we don't have to spend time and energy (and guilt and remorse and responsibility) on things past. It's a natural human response to bad experiences--put them behind you, move on and build a better future.

The problem is that there are a few things that are really too big too sweep under our collective carpet; once scuttled there, they continue to seep out at the edges to gnaw on our national psyche. Slavery is under there. Genocide of Native Americans, too. Hiroshima and Nagasaki. Japanese internment camps. Illegal spying on American citizens. Rendition. Torture.

And that's why this exchange from this morning's "This Week," is not encouraging:

STEPHANOPOULOS: The most popular question on your own website is related to this. On change.gov it comes from Bob Fertik of New York City and he asks, "Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping."

OBAMA: We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to be looking at past practices and I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering (ph).

STEPHANOPOULOS: So, no 9/11 commission with Independence subpoena power?

OBAMA: We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward.

STEPHANOPOULOS: So, let me just press that one more time. You're not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence wherever it leads?

OBAMA: What I -- I think my general view when it comes to my attorney general is he is the people's lawyer. Eric Holder's been nominated. His job is to uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics. So, ultimately, he's going to be making some calls, but my general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past.

The difficulty, as has been demonstrated, is getting those future things right without fully examining how we got it so wrong in the past, history being the thing from which we're supposed to learn. While it may be idealistic and naive to think that our Congress and our new president have it within their power to prevent these abuses from happening again, there are plenty of us out there who do think just that. Consider Jack Balkin, explaining why we have to have these investigations in a powerful opinion piece in the New York Times:

The goal of these specialized commissions and hearings will not be merely retrospective. They will also be prospective, aimed at specific government reforms. The next administration will still have to detain and try people, and it will still have to gather intelligence. The Military Commissions Act of 2006, which set up rules for terrorism trials, requires a significant overhaul, and Congress should hold hearings on how the incoming president plans to use the vast surveillance powers given him by the FISA Amendments Act of 2008.

Above all, the new president and Congress must work together. If Barack Obama does not cooperate with Congress and help make present and former officials available for testimony, these hearings will not succeed. Once out of office, President Bush will likely invoke executive privilege to prevent members of his administration from testifying, but that privilege is not absolute; it should also depend on the current president’s determination of the national interest. Mr. Obama must use the powers of his office to uncover past wrongdoing and to make sure that past misdeeds do not occur again.

We do not need a one-size-fits-all truth commission. But we do need the truth. Our democracy depends on it.

The glimmer of good news is that there is an effort in this brand new Congress. Judiciary Chair John Conyers, on the first day of the 111th Congress, introduced H.R. 104, a bill that, as reported by TPM, would "set up a National Commission on Presidential War Powers and Civil Liberties, with subpoena power and a reported budget of around $3 million, to investigate issues ranging from detainee treatment to waterboarding to extraordinary rendition." Congressman Conyers, and his colleagues Reps. Nadler, Johnson, Jackson-Lee, Cohen, Gutierrez, Delahunt, and Wasserman Schultz stepped up to that reformers' plate, and deserved to be commended, and supported.

The new Congress and the new President are facing some very daunting challenges; challenges that could create even more of an imperative to forget the past and just move on. But the lasting damage that's been done to our national psyche, our international standing, our Constitution, our democracy by the lawless Bush administration won't be ameliorated by just forgetting it all happened. As a seductive a thought as that is, it's just too big and too dangerous to try to shove under the rug.