(From the diaries. A great book-end to another piece on the formation of a Truth Commission by David/Kagro earlier today. SusanG)
"Truth and reconciliation" has a pleasant, post-partisan, get-it-all-behind-us allure to it. With its ties to those icons of resistance and justice Nelson Mandela and Desmond Tutu, the concept comes equipped with heavy armor against anyone who would dare criticize it. But the proposed commission of inquiry announced today by Senator Pat Leahy to investigate the detention, transfer and treatment of detainees by the United States should not be called, as Leahy has suggested, the Truth and Reconciliation Commission, with all such a name conjures.
Torture Commission resonates succinctly. Or name it for whomever is picked as co-chairs.
To be sure, the truth must be uncovered. Or, rather, we must add to the truths we already know about what occurred and who ordered it to occur. But it is premature – at best – to wed truth and reconciliation before even calling the first witness in what should be a relentlessly thorough investigation. Let whatever is ultimately exposed in the probe determine what should be the proper course of subsequent action.
Evidence already well known demonstrates conclusively that the Cheney-Bush administration violated the Geneva Conventions and committed war crimes. That this was accomplished under the color of "legal" memos which most likely were crafted not independently by the Office of Legal Counsel but rather with the full connivance of those whom the memos sought to protect makes it all the more imperative that no T&R-style pardon be granted before the Torture Commission’s microphones are even turned on.
Some argue that truth and reconciliation will provide a much-needed national catharsis. And that leaving open even the possibility of eventual prosecution will seem vindictive and divisive at a time when we need Americans to pull together to meet our multiple crises. But that approach denies U.S. obligations, ratified by treaty, not merely to point out war crimes but also to take legal action against any who committed them.
Let us not forget that some Americans are still serving time for lesser abuses of prisoners at Abu Ghraib than the torture we know took place at both that hellhole and other sites whose records remain classified. Punishing the grunts while letting the order-givers get off with a mea culpa is certainly a time-tested practice.
Whether we’re going to continue along those lines, however, ought not to be casually decided at the get-go. The investigatory team should do its job: offering carefully considered immunity only when critical information cannot be acquired in any other way; digging through that part of the documentary record that hasn’t been shredded or erased from hard drives; and ultimately presenting a report with its findings and recommendations.
Then, the Department of Justice, or a special prosecutor’s office can do its job.
That day may never come. Even if additional evidence uncovered in the investigation is solid (and horrific), too many political and practical obstacles may stand in the way of putting any malefactors on trial. Prosecutions would certainly not be popular in some circles. Although many of our current leaders were elected in part for their vows to break from the past, they may not have the stomach nor the spine for this particular task.
But whether to prosecute should be a decision made in six to nine months when the investigation is complete, not now. The Torture Commission should not begin its task under a truth-and-reconciliation framework in which everyone knows at the outset that no accountability will be exacted.
We don’t know what will be found. Perhaps it will just be a further accumulation of more detailed examples of what we’ve already learned, piecemeal, over the past few years. However, dark corners have yet to be explored, and something more disturbing than we yet even suspect will come to light as the commission does its work. Can we really afford, morally, politically, to give a carte blanche pass to whatever might be turned up?
What’s truly needed at this point in our history is not merely a narrow look at what occurred to prisoners snatched up since September 11, which seems likely to be the Torture Commission’s parameters. We need an investigation similar to the Otis Pike and Frank Church committees of 1975-76. But with fangs. It should start where those two left off. Because U.S.-sanctioned and funded torture didn’t begin at Abu Ghraib or Camp Delta at Guantánamo, nor with the Cheney-Bush administration. The CIA has been doing it and training others to do it for decades, before and after the 1970s.
When such a broad investigation is finished, tough new laws with oversight enforcement mechanisms written in should be passed so that we do not have a repeat of what happened after Church and Pike finished their work. That is, we don’t need more modest reforms that the intelligence branches and a determined unitary executive can easily overcome.
To imagine the Senate Judiciary Committee or any other nook of Congress will take on such a task, however, is to believe in unicorns.
A more narrowly focused Torture Commission will have to do. Of course, it could be the perfect venue for a whitewash, something ultimately amounting to what Nixon counsel John Ehrlichman called a "modified limited hang-out". But when the last major government commission undertook its work, the blogosphere was in its infancy. Now it is hard to imagine that any investigation would not be monitored by torturecommission.com, .org, .net, and all other manner of highly motivated and qualified watchers shadowing the investigation’s every move. Public oversight of the overseers, imperfect no doubt, but more attentive than ever before.
Many who have watched the Cheney-Bush administration’s wrongdoings unfold believe doing anything other than going straight to a special prosecutor or initiating legal action by the Obama Department of Justice falls short of what ought to happen. But we’ve gotten a clear message from the White House on this. Not going to happen. Not yet at least. So a commission without reconciliation in either its name or disposition is the next best option.
The truth or some portion of it could, it is obvious, be all we get out of the Torture Commission. But as Glenn Greenwald writes:
The process of shining light on government crimes cannot always be controlled once it starts, especially if genuine investigative powers are vested in an independent Commission. When Obama recently embraced Bush's State Secrets privilege and in other cases began aggressively trying to shield other Bush crimes (such as illegal eavesdropping) from judicial scrutiny, many suggested that the Obama administration's motive is that it fears that any systematic disclosures -- and especially any formal adjudication -- of Bush lawbreaking will significantly increase the pressure on the Obama DOJ to commence criminal investigations, something it desperately wants not to do. Such fact-finding investigations can rile up public sentiment, unearth facts that would serve as the basis for prosecutions, and create a more favorable political climate for prosecutions.
Even under far narrower parameters than the Pike and Church committees, the Torture Commission’s task will go well beyond torture. The "black sites" remain with their shrouds intact. The full extent of extraordinary rendition has not been explored. If the oft-cited rationale of preventing future wrongdoing is going to mean anything beyond farcical feel-good sloganeering, these, along with torture, must get the deepest attention.
Perhaps all that will be found is more evidence of what we already know. That prisoners euphemized as "detainees" were grabbed up for often flimsy reasons, carted to secret locations for secret torture sessions during which some 100 died, and the survivors held outside the bounds of the law and the realm of civilized behavior for more than half a decade. Or perhaps the Torture Commission will uncover not only fresh details of what we already half-know, but also something entirely new.
Whichever the case, if the Torture Commission is to be taken seriously, it cannot begin its task already hamstrung by the knowledge that nobody is going to be held accountable for what it uncovers about the willful dismantling of the rule of law and of behavior that most Americans rightly condemn as barbaric when done by other nations. If it begins its life on such a short leash, a toothless barker, its usefulness will prove barely worthy of a footnote.