As President Barack Obama reverses some of ex-President George W. Bush’s most controversial “war on terror” policies, a consensus seems to be building among Democratic congressional leaders that further investigations are needed into Bush’s use of torture and other potential crimes.
On Wednesday – the first working day of the Obama administration – Senate Majority Leader Harry Reid said he would support funding and staff for additional fact-finding by the Senate Armed Services Committee, which last month released a report tracing abuse of detainees at Guantanamo Bay and Abu Ghraib to Bush’s Feb. 7, 2002, decision to exclude terror suspects from Geneva Convention protections.
Senate Armed Services Committee Chairman Carl Levin, who issued that report, echoed Reid’s comments, saying “there needs to be an accounting of torture in this country.” Levin, D-Michigan, also said he intends to encourage the Justice Department and incoming Attorney General Eric Holder to investigate torture practices that took place while Bush was in office.
Two other key Democrats joined in this growing chorus of lawmakers saying that serious investigations should be conducted.
Sen. Sheldon Whitehouse, D-Rhode Island, a former federal prosecutor and a member of the Senate Judiciary Committee, said in a floor speech, “As the President looks forward and charts a new course, must someone not also look back, to take an accounting of where we are, what was done, and what must now be repaired.”
Democratic Majority Leader Steny Hoyer of Maryland told reporters: "Looking at what has been done is necessary.”
On Jan. 18, two days before Obama’s inauguration, House Speaker Nancy Pelosi expressed support for House Judiciary Committee Chairman John Conyers’s plan 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.”
In an interview with Fox News’ Chris Wallace, Pelosi specifically endorsed a probe into the politicization of the Justice Department, but didn’t spell out a position on Conyers's plan to examine the Bush administration’s torture and rendition policies, which could prove embarrassing to Pelosi and other Democratic leaders who were briefed by the CIA about these tactics.
Still, when Wallace cited Obama’s apparent unwillingness to investigate the Bush administration, Pelosi responded: “I think that we have to learn from the past, and we cannot let the politicizing of the — for example, the Justice Department, to go unreviewed. Past is prologue. We learn from it. And my views on the subject — I don't think that Mr. Obama and Mr. Conyers are that far apart.”
The emerging consensus among top congressional Democrats for some form of investigation into Bush’s controversial policies has surprised some progressives who had written off the leadership long ago for blocking impeachment hearings and other proposals for holding Bush and his subordinates accountable.
In 2006, for instance, Pelosi famously declared that “impeachment is off the table,” and prior to Election 2008, the Democratic leadership largely acquiesced to Bush’s demands for legislation that supported his “war on terror” policies, including a compromise bill granting legal immunity to telecommunications companies that assisted in Bush’s warrantless wiretaps.
Since the election – in which the Democrats increased their congressional majorities and won the White House – key Democrats have begun releasing more information about Bush’s abuses of power.
Besides Levin’s findings on mistreatment of detainees, Conyers published a 487-page report entitled "Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush” that calls for the creation of a blue-ribbon panel and independent criminal probes into the Bush administration’s conduct in the “war on terror.”
Conyers urged the Attorney General to “appoint a Special Counsel or expand the scope of the present investigation into CIA tape destruction to determine whether there were criminal violations committed pursuant to Bush administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.”
Last year, Bush’s Attorney General Michael Mukasey appointed U.S. Attorney John Durham as special counsel to investigate whether the destruction of CIA videotapes that depicted interrogators waterboarding alleged terrorist detainees violated any laws. Durham was not given the authority to probe whether the interrogation techniques themselves violated anti-torture laws.
“At present, the Attorney General has agreed only to appoint a special U.S. Attorney to determine whether the destruction of videotapes depicting the waterboarding of a detainee constituted violations of federal law,” Conyers’s report said.
“Despite requests from Congress, that prosecutor has not been asked to investigate whether the underlying conduct being depicted – the waterboarding itself or other harsh interrogation techniques used by the military or the CIA – violated the law. ... Appointment of a special counsel would be in the public interest (e.g., it would help dispel a cloud of doubt over our law enforcement system).”
Additional evidence about the Bush administration’s actions is expected to become available in the coming weeks as the Obama administration loosens the secrecy that has surrounded Bush’s “war on terror,” a phrase that Obama and his team have effectively dropped from Washington’s lexicon.
Obama’s aides have indicated that there soon may be a “public airing” of secret Justice Department legal opinions and other documents that provided the underpinning for the Bush administration’s brutal interrogation policies.
Levin also indicated that he expects to release the full Armed Services Committee report – covering an 18-month investigation – in about two or three weeks. Levin added that he would ask the Senate Intelligence Committee to conduct its own investigation of torture as implemented by the CIA.
Meanwhile, Republicans have grown increasingly worried that Holder, as Attorney General, will launch a criminal investigation into Bush’s interrogation policies. They delayed a vote on his nomination demanding that he respond to questions about whether he intends to investigate and/or prosecute Bush administration officials.
Sen. John Cornyn, R-Texas, said he wants to ask Holder whether he intends to investigate the Bush administration and intelligence officials for torture.
Last week, at his confirmation hearing before the Senate Judiciary Committee, Holder was asked about the practice of waterboarding, a form of simulated drowning that the Bush administration has acknowledged using against three terror suspects. Holder answered that “waterboarding was torture.”
Cornyn said Holder’s view means there is a possibility that investigations might be on the horizon.
"Part of my concern, frankly, relates to some of his statements at the hearing in regard to torture and what his intentions are with regard to intelligence personnel who were operating in good faith based upon their understanding of what the law was," Cornyn said Wednesday.
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 23, 2009.