In one week, Senate Judiciary Committee Chairman Patrick Leahy says he will begin establishing a “commission of inquiry” to investigate the Bush administration’s use of torture and other abuses of power, but House Speaker Nancy Pelosi is objecting to his plan of granting immunity to some witnesses.
In an interview with Rachel Maddow on her MSNBC program Wednesday, Pelosi called Leahy's investigative plan “a good idea,” but objected to immunity that could prevent prosecutors from holding Bush administration officials accountable for crimes in a court of law.
Pelosi, who refused to hold impeachment hearings when George W. Bush was President, signaled that she now prefers a proposal by House Judiciary Committee Chairman John Conyers, who wants a “blue-ribbon panel” to probe the Bush administration but seeks a special prosecutor, too.
Pelosi also said that when she was on the House Intelligence Committee during Bush's first term she was briefed about the CIA's "enhanced interrogation" techniques but only in the "abstract." She said she never believed the agency's interrogators intended to use such methods.
In a floor statement earlier on Wednesday, Leahy said he would hold a Senate Judiciary Committee hearing on March 4 to examine the best way for an independent panel to probe how Bush exercised his “national security and executive power as related to counterterrorism efforts.”
“The past can be prologue unless we set things right,” the Vermont Democrat said. “The last administration justified torture, presided over the abuses at Abu Ghraib, destroyed tapes of harsh interrogations, and conducted ‘extraordinary renditions’ that sent people to countries that permit torture during interrogations.
“The last administration used the Justice Department – our premier law enforcement agency – to subvert the intent of congressional statutes. They wrote secret law to give themselves legal cover for these misguided policies, policies that could not withstand scrutiny if brought to light.”
Though Leahy has argued that a “truth commission” is the best way to expose the dark underbelly of Bush’s policies, other civil liberties experts say accountability requires bringing to justice perpetrators of serious crimes, no matter how high their government positions.
On Tuesday, David Swanson of afterdowningstreet.org circulated a petition demanding Attorney General Eric Holder appoint a special prosecutor to launch a criminal investigation into the Bush administration’s actions.
After Leahy’s Senate comments, the American Civil Liberties Union weighed in, urging both a special prosecutor and a congressional select committee.
"Both the Obama administration and Congress have an obligation to conduct investigations in order to achieve accountability and to ensure these egregious errors will not happen again,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “In order for America to move forward and put torture and abuse behind us, we must know how our nation was led astray.”
A Gallup poll, released this month, found a plurality favoring a criminal probe – and a strong majority supporting some additional fact-finding. For instance, on torture, 38 percent favored a criminal investigation while 24 percent favored an inquiry by an independent panel. Thirty-four percent of those polled said they did not support additional investigation of Bush’s policies.
The poll results undercut claims of many Republicans and some Democrats that the public lacks the appetite to look into Bush administration abuses.
In his floor speech, Leahy said he’s aware that “many are focused on whether crimes were committed” but added that “it is just as important to learn if significant mistakes were made, regardless of whether they can be proven beyond a reasonable doubt to a unanimous jury to be criminal conduct.
“We compound the serious mistakes already made if we limit our inquiry to criminal investigations and trials,” Leahy said. “Moreover, it is easier for prosecutors to net those far down the ladder than those at the top who set the tone and the policies.
“We do not yet know the full extent of our government's actions in these areas, and we must be sure that an independent review goes beyond the question of whether crimes were committed, to the equally important assessment of whether mistakes were made so we may endeavor not to repeat them. As I have said, we must read the page before we turn it.”
When Leahy first announced his commission plan on Feb. 9, he made clear that his approach would substitute for possible prosecutions and would even try to avoid partisan hard-feelings.
“I don't want to embarrass anybody,” Leahy said. “I don't want to punish anybody. I just want the truth to come out so this never happens again.”
Leahy said the truth commission would have the power of subpoena and the authority to grant immunity from prosecution.
When President Obama was asked about Leahy’s proposal during a news conference on Feb. 9, he declined to comment, but reiterated his ambiguous response from the campaign, that no one is above the law but that he favored looking forward, not backward.
“What I have said is that my administration is going to operate in a way that leaves no doubt that we do not torture that we abide by the Geneva Conventions and that we observe our traditions of rule of law and due process as we are vigorously going after terrorists that can do us harm,” Obama said.
"My view is also that nobody is above the law, and if there are clear instances of wrongdoing then people should be prosecuted just like any ordinary citizen. But generally speaking I am more interested in looking forward than I am in looking backwards.”
Leahy said Wednesday that he has entered into discussions with Obama’s White House, presumably to gain its support for his commission idea. Leahy added that he also has started speaking with other members of Congress and outside experts.
Over the next few weeks, several critical documents about the Bush administration’s torture practices are expected to be released.
Sen. Carl Levin, chairman of the Senate Armed Services Committee, is set to make public a voluminous, declassified report about the U.S. military’s role in harsh interrogations. The Justice Department is expected to release a summary of a four-year long investigation into the genesis of legal opinions that cleared the way for torture of detainees.
A special prosecutor also is expected to make public the findings of year-long probe into the destruction of videotapes that showed “war on terror” detainees being waterboarded, a technique that subjects a person to the sensation of drowning and that has been regarded as torture for centuries.
Before leaving office, President Bush and Vice President Dick Cheney admitted that they authorized the waterboarding of at least three "high-value" detainees and the harsh interrogations of 33 other prisoners.
Leahy singled out Cheney’s comments on Wednesday, saying that the former Vice President “continues to assert unilaterally that the Bush administration’s tactics, including torture, were appropriate and effective. But interested parties’ characterizations and self-serving conclusions are not facts and are not the unadulterated truth.”
Following Leahy’s address to his Senate colleagues, Sen. Sheldon Whitehouse, D-Rhode Island, who has spent more than a year calling for an independent investigation of the Bush administration’s torture policies, spoke in support of Leahy’s proposal and excoriated the Bush administration for the “wreckage” it left behind.
“The Bush administration left our country deeply in debt, bleeding jobs overseas, our financial institutions rotten and weakened, an economy in free-fall,” Whitehouse said. “This is the wreckage we see everywhere, in shuttered plants ... in long lines, and in worried faces.
“But there is also damage that we cannot see so well, the damage below the waterline of our democracy – damage caused, I believe, by a systematic effort to twist policy to suit political ends; to substitute ideology for science, fact and law; and to misuse instruments of power. ...
“The path back from the dark side may lead us down some unfamiliar valleys of remorse and repugnance before we can return to the light.
“We may have to face our fellow Americans saying to us, ‘No, please, tell us that we did not do that, tell us that Americans did not do that’ – and we will have to explain, somehow. This is no small thing, and not easy; this will not be comfortable or proud; but somehow it must be done.”
Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.
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This story was published on February 26, 2009.