There are a number of investigations pending. Some, like the SASC report, have been already been released. The IRCR report would fall into this category, though it wasn't intended for public consumption, it has to be considered as part of the body of knowledge of the issue. The Senate Intelligence Committee is conducting an investigation of the "the conditions and interrogations of certain high value detainees." Sen. Feinstein has requested that President Obama refrain from making public comments about who should and should not be prosecuted before the results of this inquiry are known. The DOJ's Office of Professional Responsibility has apparently completed its work in investigating how the OLC memos came to be, and reportedly "may link controversial memos on civil liberties and torture . . . directly to the White House." Sen. Sheldon Whitehouse has stated that he expects the report to be "devastating."
With all that and more coming down the pike, there are numerous options for dealing with it. First, Congressional committee hearings could be convened. These would be seen as inherently partisan, since the Democratic committee chairs would be calling them. We've seen demonstrated time and time again the contempt with which BushCo regards Congress, even when subpoenaed. This seems like an unlikely route to uncovering the full story, though a very real possibility if either an independent investigation or truth commission isn't established.
What Congress should be investigating and exploring--though this is highly unlikely--is where in the hell it's been for the past eight years. Congress's abdication of its role as a check on the executive should be examined with a bit of critical self-reflection on the part of our representatives. Yes, as David points out, in many instances Congress's, and particularly the Democrats', hands were tied by the Bush administration. Yet Congress still actively participated in the executive overreach by doing things like passing the Military Commissions Act and the FISA Amendments Act--legislation that cut Congress and the courts off at the knees. Hearings, and eventual legislation, geared toward restoring Congress's rightful role in governing are absolutely necessary if we're to avoid another disastrous presidency.
In addition to larger actions Congress could take, there's the issue of the discrete action of impeachment of Jay Bybee that's gaining momentum. From the California Democratic Party, to the New York Times, to John Podesta, to Sen. Boxer, support for removing Jay Bybee's warped legal mind from the federal bench is gelling. The advantage of a Bybee impeachment politically is that some accountability will be had. There also is a very compelling argument that someone so willing to bend the law, and in an issue as extreme as this one, really shouldn't be on the federal bench. The downside is the one Democrats are going to face--are already facing--no matter what action they take on this issue; Republicans screaming "partisan witch hunt."
To try to lessen the partisan bent of this, Sen. Leahy and Speaker Pelosi both support a "truth commission," and Sen. Reid has been back and forth on the issue, seemingly wanting to wait until committee investigations are completed. In many ways, if we're also trying for "reconciliation" of what's been done to this country and in our names in the past eight years, an independent, bipartisan commission is the most attractive one. It's also critical, in the way Sen. Leahy is imagining it, to answering more than just the Bush torture regime. Leahy envisions a panel uncovering all of the laws the Bush administration stretched to fit its broad notions of executive power. The problem, of course, is that cooperation from the principles (as it would with congressional hearings) would only likely be had with immunity. We would get the very necessary sunlight on the activities of the Bush administration, but accountability for those activities would likely have to be sacrificed.
If accountability is key, the most likely venue is an independent prosecutor, which, again, isn't mutually exclusive of the other possibilities. If, however, a special prosecutor is appointed and a grand jury convened, the other options become limited. Once there's a grand jury, operating in secret, information would dry up. No one would speak to Congress or to an independent truth commission. The same is true if the DOJ would decide to prosecute (which I think is the least likely possibility). Defense lawyer Jeralyn Merritt at TalkLeft describes:
Criminal trials in federal court would begin with a grand jury investigation. Grand juries have subpoena powers. The Justice Department has the power to immunize officials to obtain grand jury testimony. The Court has the power to sentence those who refuse to testify notwithstanding immunity to jail for the life of the grand jury -- up to 18 months, and more if the grand jury is extended. On the other hand, grand juries operate in secret, so the public won't learn anything if they conclude without indictments. Even if people are indicted, and the grand jury testimony is released to defendants, it won't be released to the public.
We've also seen the limited power of an independent prosecutor in the Scooter Libby case. The Plame affair all but disappeared from the national political discourse once Fitzgerald and the grand jury got to work. That's both an advantage and disadvantage, politically. The public support for prosecutions, for accountability can wane in the absence of news about the story. On the other hand, it doesn't provide political distractions and leaves the White House and Congress, sometimes thankfully, out of the loop.
In the op-ed from Mark Danner I linked to above, he makes a compelling case for both a truth commission and prosecutions:
If justice is allowed to follow its course, then some prosecutions will eventually come, but they alone cannot lead us back to political health. For that, President Obama and Congress need to authorize an authoritative bipartisan investigation of what was done and how, for that is the only way to destroy definitively the idea that the United States must torture to defend itself. For the moment, the president, an ambitious leader who wants to "look forward" and not back, sees only the political costs of such an inquiry, which will be considerable. But the country has already incurred those costs and the damage in not paying them now will be far greater.
Like most mystiques built on secrecy, the mystique of torture will only disappear once a cold hard light has been shone on it by trustworthy people who can examine all the evidence and speak to the country with authority. We need an investigation that will ruthlessly analyze the controversial and persistent assertions that torture averted attacks and will place alongside them the evidence that it has done great harm to the United States, not only to the country's reputation for following and upholding the law but also to its ability to render justice. In torturing Khalid Sheik Mohammed and his fellows we have created a class of permanent martyrs, unjustly imprisoned in the eyes of the world because they cannot be legitimately tried and punished. We have let torture destroy justice.
Those who break the law should be punished. This includes those who torture no less than those who kill. But prosecutions of those who tortured, if they come before a public investigation, will not end the argument. On the contrary, they will appear too much of the country as yet another partisan turn in the bitter politics of national security, launched to persecute those who only did what was necessary to protect the country. They will encourage those who defend torture to espouse even more bitterly a corrosive counter-narrative according to which only those who torture can be trusted to protect Americans.
Arriving at both accountability and light in this toxic political environment will be a massive challenge, but one from which our leaders shouldn't shirk. Which brings me to the final choice, the one that seems to be the one that President Obama most wishes for, though political reality might not allow it. That is, to "look forward." To release the information the court demands, turn the page, and move forward. The advantages of this approach are at this juncture unclear. It might appease some Republicans, it might make getting a Democratic agenda enacted easier for President Obama. That seems highly unlikely to me. If we've learned anything from the past decade, it's that compromise doesn't exist for Republicans. They don't need the excuse of what they'll deem a "partisan witch hunt" in order to obstruct. They'll obstruct anyway. The thought that a reckoning for the crimes of the Bush administration is the only obstacle standing between us and the realization of a bright new shiny agenda for the country strikes me as naive, to say the least.
It would also, of course, appease David Broder, and with him much of the Village. David Broder thinks that demanding any accountability for what he calls "torture" (quotation marks his) shows "an unworthy desire for vengeance." David Broder also thinks that a politician who lied about extramarital consensual sex "trashed the place" and deserved investigation and impeachment. Apparently using the White House to conspire to torture, in fact to choreograph torture techniques, in order to extract propaganda to take the nation into an unnecessary and unjustified war is business as usual in the Village, as far as the Dean is concerned. In my opinion, his is a warped sense of what is truly perverse that should be condemned rather than respected.
The damage of doing nothing is hard to calculate, but I think there are a few guarantees of what will happen. More and more information will continue to come out about what America did. There are a handful of official accountings still expected, but once those have all been released, we'll start seeing the product of the people who were tortured, and of those who did the torturing. There are more photos coming, as many as 2,000, but there could be more that the government doesn't know about. There will be more interviews and exposes from former detainees, and possibly guards. There will undoubtedly be memoirs from the tortured and the torturers. There is the possibility of indictments of Americans in foreign countries.
In short, it's a book that likely won't end for at least another generation. When we turn a page, there will be another page after it, and another after that. It won't really end. It will fester. It will add to the cynicism many in our country feel toward their government, will add to the disconnect, will cement the knowledge that there are two kinds of justice in our country, and that the Donald Rumsfelds go free, while the Lynndie Englands and Charles Grangers rot in prison.
Our standing will be diminished among our friends in the rest of the world, and among civilized nations who would be our friends. It will be much easier for those who might not otherwise be our enemies to find justification to turn against us. The effect of the United States getting away with torture would mean other nations would feel unrestricted in using it. The countries that abide by their treaty obligations--and their soldiers--would be at a disadvantage. And everybody's soldiers--America's included--would be more likely to face torture if captured.
It will have made torture a policy choice that future presidents will feel justified in turning to. Finally, it will mean that we're a country governed by the rule of law only when the people making and wielding the laws feel like following them.
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