In one of the first acts of the 111th Congress, House Judiciary Committee Chairman John Conyers proposed legislation to create a blue-ribbon panel of outside experts to probe the “broad range” of policies pursued by the Bush administration “under claims of unreviewable war powers,” including torture of detainees and warrantless wiretaps.
Conyers’s proposal for a National Commission on Presidential War Powers and Civil Liberties also signals that Congress will devote significant time this year to investigating the Bush administration’s most controversial actions with an eye to rolling back its expansion of executive power.
Many civil liberties and human rights groups feared that the Democratic-controlled Congress and Barack Obama’s administration would duck any sustained inquiry into wrongdoing by George W. Bush and his subordinates, to avoid angering Republicans.
While Conyers’s plan falls short of the criminal probe that civil rights groups have sought, neither would it prevent a criminal investigation by Obama’s Justice Department if the new administration moves in that direction, said two aides on Obama’s transition team who spoke on condition of anonymity.
Obama has been ambivalent about how to proceed regarding wrongdoing by the Bush administration. He said during the campaign that willful criminality should be punished because “nobody is above the law,” but also expressed concern that an investigation might get bogged down in recriminations and could be viewed by Republicans as “a partisan witch hunt.”
Obama also has suggested he might support some form of truth commission as a way of ascertaining the facts, which would be in line with Conyers’s plan.
The proposed blue-ribbon panel would consist of nine members, with no more than five from the same political party. Appointed by the President and congressional leaders, the panel would have a budget of about $3 million and subpoena power to compel testimony from high-level members of the Bush administration.
The panel would file an initial report to the President and Congress within one year and a final report six months later. The report would include “any recommendations the Commission considers appropriate.” lt is unclear if criminal prosecution could be one of the recommendations of the panel.
Last year, amid disclosures about White House approval of brutal interrogation tactics used against “war on terror” detainees, Conyers called on Attorney General Michael Mukasey to appoint a special prosecutor to determine whether these actions constituted war crimes. But Mukasey didn’t act.
In a roundtable discussion with reporters on Dec. 3, Mukasey revealed his thinking, arguing that there is no legal basis to prosecute current and former administration officials for authorizing torture and warrantless domestic surveillance because those decisions were made in the context of a presidential interest in protecting national security.
"There is absolutely no evidence that anybody who rendered a legal opinion, either with respect to surveillance or with respect to interrogation policies, did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful,” Mukasey said.
Regarding Justice Department legal opinions sanctioning these actions, Mukasey said he feared that second-guessing of those opinions would send “the message ... that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future.”
The war-crimes issue surfaced again when Vice President Dick Cheney gave media interviews last month in which he talked unapologetically about his role in approving harsh interrogation tactics, including the simulated drowning of waterboarding which is widely regarded as torture.
Conyers’s proposed legislation was introduced on the same day that the Senate Judiciary Committee gave reporters three previously unreleased Justice Department legal opinions pertaining to Bush’s authority to declare war with Iraq.
The legal opinions were written by Jay Bybee and John Yoo, former Justice Department attorneys who also drafted the infamous August 2002 “Torture Memo” that authorized CIA interrogators to waterboard high-level prisoners at Guantanamo Bay.
The Justice Department’s Office of Professional Responsibility has spent the past four years investigating the genesis of that memo, specifically whether Bybee and Yoo provided the White House with poor legal advice.
In Bybee’s newly released Oct. 23, 2002, 47-page opinion, he stakes out broad war-making powers for Bush, claiming the President "possesses constitutional authority for ordering the use of force against Iraq to protect our national interests.”
The memo was drafted about two weeks after Congress approved a resolution authorizing Bush to "use the Armed Forces of the United States as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq.”
In the memo, Bybee reaffirmed an earlier opinion that Bush possessed the necessary war-making powers regardless of what Congress did.
"This memorandum confirms our prior advice to you regarding the scope of the President's authority. We conclude that the President possesses constitutional authority for ordering the use of force against Iraq to protect our national interests," Bybee's memo said.
“This independent authority is supplemented by congressional authorization in the form of the  Authorization for Use of Military Force Against Iraq Resolution ..., which supports the use of force to secure lraq' s compliance with its international obligations following the liberation of Kuwait, and the  Authorization for Use of Military Force ..., which supports military action against Iraq if the President determines Iraq provided assistance to the perpetrators of the terrorist attacks of Sept. 11, 2001.
"In addition, using force against Iraq would be consistent with international law, because it would be authorized by the United Nations Security Council, or would be justified as anticipatory self-defense."
As it turned out, the UN Security Council did not approve military action against Iraq, forcing Bush to assemble an ad hoc multinational force that he called the "coalition of the willing." UN Secretary General Kofi Annan later acknowledged that the U.S.-led invasion of Iraq was a violation of international law.
There also has been no credible evidence indicating that Iraq provided any assistance to the 9/11 hijackers.
Another newly released legal opinion, written by Bybee’s successor, Jack Goldsmith, authorized Iraqi prisoners be moved to other countries to be interrogated — a practice known as rendition.
The existence of the three new legal opinions were first reported Tuesday by McClatchy Newspapers, which added that “Yoo supplements those arguments [on presidential powers] in two other memos dated Nov. 8, 2002 and Dec. 7, 2002.”
Conyers’s legislation for the blue-ribbon commission was co-sponsored by Democratic Reps. Maxine Waters, Jerrold Nadler, Linda Sanchez, Bill Delahunt, Luis Gutierrez, Bobby Scott and Steve Cohen.
Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.
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This story was published on January 8, 2009.