March/April 2009: Will Congress Cast Light on the Dark Side of the Bush Era?

Washington Watch | March/April 2009
By Bruce Moyer

A new Congress is faced with a dilemma: whether to begin a controversial process that investigates possible government wrongdoing during the Bush administration. Findings of wrongdoing potentially could lay the groundwork for the prosecution of high-level government officials, past and present.

The chairmen of the Judiciary Committees in the Senate and the House of Representatives both have called for the creation of expansive, independent commissions to investigate the Bush era, focusing on whether American and international laws were violated. The committees would have a key role in creating such commissions because of the committees’ jurisdiction.

Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, has proposed the creation of what he calls a "Truth Commission" to probe the use of torture and other alleged violations of the U.S. Constitution and the Geneva Conventions. The commission would probe the legality of anti-terror policies and the misuse of intelligence to promote the invasion of Iraq and partisan abuses in the Justice Department through the firing of U.S. attorneys who were viewed as potentially disloyal to the administration.

Leahy would use a process modeled partly on the Truth and Reconciliation Commission of postapartheid South Africa. He also has invoked the Church Committee, a Senate panel in 1975 that investigated illegal intelligence gathering by the CIA and FBI after certain activities had been revealed by the information that came out of the inquiry into the Watergate affair. Leahy would give his Truth Commission subpoena power and the authority to grant prosecutorial immunity to witnesses. "We need to get to the bottom of what happened and why," Leahy said in a speech at Georgetown University on February 9. "The reason we do that is so that it’ll never happen again. One path to that goal would be a reconciliation process—a Truth Commission."

Rep. John Conyers (D-Mich.), chairman of the House Judiciary Committee, has introduced more narrow legislation, H.R. 104, that would create the National Commission on Presidential War Powers and Civil Liberties. The commission would be charged with investigating the provocative policies that helped to anchor the Bush administration’s prosecution of the war on terror. Conyers’ proposal targets specific tools and methods,

  • Detention: Should the CIA and the military be able to detain suspected terrorists indefinitely without charging them or allowing them access to lawyers?
  • Enhanced interrogation: Should prisoners be subjected to waterboarding and other techniques commonly seen as torture?
  • Extraordinary rendition: Should U.S. authorities send suspects to prisons in countries where harsh interrogations and techniques, including torture, are likely? 
  • Warrantless electronic surveillance: Was it legal for U.S. officials to eavesdrop on citizens without getting warrants to do so?

Will Congress establish a commission to probe the legality of these and other polices during the Bush era? A minority of Americans appear to have the stomach for ferreting out the past and determining whether or not their leaders committed war crimes. Even though 61 percent of Americans support some kind of investigation into these matters, only 41 percent favor criminal probes, a recent Gallup Poll found. Even among liberals, strong support for such a commission is lacking, according to a recent poll.

President Barack Obama has not yet signaled support for such an investigation, preferring to focus on saving the distressed economy. In his first days in office, President Obama reversed some of the most controversial detention and interrogation policies of the Bush administration. Obama’s three executive orders issued within days of his inauguration mandated the closure of the Guantánamo Bay detention facility within a year, suspended military commission proceedings and the CIA’s enhanced interrogation program, and established an interagency task force to look into the future use of military interrogation procedures and to determine if rendition compromises U.S. compliance with bans on torture.

Republicans are bound to oppose the creation of any commission, calling it a witch hunt. Rep. Lamar Smith (R-Texas), the ranking GOP member of the House Judiciary Committee, has already opposed the proposal, saying, "We have already had a thorough investigation into the Justice Department, including a two-year inquiry led by Democrats in Congress and an official investigation by the Justice Department’s inspector general."

Bruce Moyer is government relations counsel for the FBA.
© 2009 Bruce Moyer. All rights reserved.


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