Is there any purpose served by investigating allegations of ordering torture, illegal surveillance, and other sins alleged to have been committed during the years of the Bush Administration?
For those of us on both sides who are slightly less partisan in our view of government and politics, it is a serious question. For those who have already made up their mind on both sides, not so much. While they scream at each other across the great divide in American politics, serious people will have to grapple with the serious questions - legal and constitutional - raised by the actions of the Bush Administration over the years.
As I see it, there are two major roadblocks to investigating previous actions of the administration. The first is that much of what has been alleged involves top secret programs, only parts of which we have been given a glimpse. It is a dead sure bet that no one has seen the legal opinions written by the Justice Department for any of these alleged abuses which makes any charges of illegal or unconstitutional actions by the Bushies even more problematic.
To base an opinion only on what has come out in the press about the Terrorist Surveillance Program, for instance, has always puzzled me. Forming an opinion without all the facts is the definition of “half-assed.” And what information we have as far as the TSP is concerned has come to us largely from anonymous sources who may, or may not, have had sufficient access to information about how the program worked in its entirety, not to mention a question of their knowledge of the legal implications involved. Compartmentalization of information in these top secret programs is a given and the number of people who would have a good overall picture of how they worked would be few indeed.
The only way to find out for sure is to investigate how the program was set up, how it was run, the technical means employed, and the legal justification for them. (Torture is a different matter that I address below.) But is it possible to investigate the workings of a top secret, on-going intelligence program without compromising its effectiveness?
And this brings me to my second major roadblock to investigating alleged abuses in the Bush Administration; the probability that any such investigating will degenerate into a partisan circus.
The Judiciary Committee under John Conyers has written two reports since 2006 that goes into excruciating detail about illegalities and unconstitutional actions by the Bush Administration. The problem is - and Conyers admits it - is that nothing in either report constitutes a finding of fact. This is not surprising given that the overwhelming number of allegations are based on newspaper accounts, studies done by liberal think tanks, or reports from partisan left organizations like Human Rights Watch and the ACLU.
Here’s Conyers from the Forward to today’s release of a 457 page list of allegations against Bush and his Administration. He is quoting from an op-ed he wrote in 2006 after the release of his initial report, “The Constitution in Crisis.” After all that ”investigating,” we are left with little better than a political indictment of actions Conyers and much of the left disagrees with:
The administration’s stonewalling, and the lack of oversight by Congress, have left us to guess whether we are dealing with isolated wrongdoing, or mistakes, or something worse. In my view, the American people deserve answers, not guesses. I have proposed that we obtain these answers in a responsible and bipartisan manner.
It was House Republicans who took power in 1995 with immediate plans to undermine President Bill Clinton by any means necessary, and they did so in the most autocratic, partisan and destructive ways imaginable. If there is any lesson from those “revolutionaries,” it is that partisan vendettas ultimately provoke a public backlash and are never viewed as legitimate. So, rather than seeking impeachment, I have chosen to propose comprehensive oversight of these alleged abuses. The oversight I have suggested would be performed by a select committee made up equally of Democrats and Republicans and chosen by the House speaker and the minority leader.
The committee’s job would be to obtain answers - finally. At the end of the process, if - and only if - the select committee, acting on a bipartisan basis, finds evidence of potentially impeachable offenses, it would forward that information to the Judiciary Committee.
Conyers admits he has no “answers” - only questions. Hence, the idea of some kind of “bi-partisan” committee to look into these allegations (there are hundreds) and discover “the truth.”
The Judiciary reports take issue with the Administration over just about every action they’ve undertaken in 8 years. Signing statements, intelligence, detention policies, rendition (begun under Clinton and expanded under Bush), warrantless searches and surveillance, the Plame Affair, the politicization of the Justice Department, the states attorney imbroglio, and “enhanced interrogation” or torture.
How many are actual allegations of crimes committed and how many are reasonable (or unreasonable) differences of opinion over politics? We won’t know unless someone, somewhere investigates what went on. The question of whether we need answers or not is moot. We do. The problem is who is going to find the answers?
Conyers’ idea of a bi-partisan committee or commission made up equally of members from both sides won’t fly. The Republicans tried it with investigating intelligence leading up to the Iraq War and the Democrats rejected the findings and substituted their own narrative. There was also the 9/11 Commission that degenerated into a partisan tug of war and that failed to assess enough blame to either Clinton or Bush while going easy on Giuliani and the intel agencies. There was also the findings of the WMD Commission most Democrats rejected out of hand.
The fact of the matter is politicians are, well, politicians and asking them to forget that primary fact of their existence is absurd. Hence, Conyers idea of entrusting such a daunting task to Congress is, to my mind, a non-starter. Even beyond the 9/11 Commission or the other investigative committee reports on the war, any body that investigates the president must be beyond partisan suspicion.
The leaves us with two choices; naming a special prosecutor (or several) to impartially investigate potential abuses or, intriguingly, set up a Commission of private citizens a la the South African Truth Commission. The latter idea has some interesting possibilities but at bottom, is a little ridiculous. In South Africa, they were dealing with decades of apartheid as well as political murders and violence. Unless you think Bush is responsible for 9/11 or actually caused Hurricane Katrina, I think some kind of Truth Commission is a just too much drama for what is at stake in any investigation of the Bushies.
A special prosecutor would probably be the fairest and most efficacious way to investigate wrongdoing during the Bush years. I think one should definitely be appointed to address the issue of torture which is not a political issue and represents some of the most serious charges of illegality against the president and his people.
As for the rest of Conyers allegations, I just don’t know. The problem with special prosecutors is that once you appoint one, they are almost duty bound to find illegality come hell or high water (i.e. Scooter Libby, Ken Starr). If it would be possible to narrow the scope of what a special prosecutor might be tasked to investigate, it might be possible that such an examination of Administration actions could rise above partisanship and would be accepted by a large majority.
But perhaps, that is only wishful thinking. Obama himself recognizes the difficulties which is why he would rather “look forward” than behind:
Obama also views waterboarding as torture. To find out who authorized its use in interrogations, House Judiciary Committee Chairman John Conyers has introduced a bill creating a bipartisan commission with subpoena power. But when Obama was asked on ABC’s This Week whether he’d back such a commission, he was cautiously noncommittal.
“We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions and so forth,” Obama said. “Obviously, we’re going to be looking at past practices and I don’t believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backward.”
Some Democrats who have strongly opposed the Bush administration’s detention and interrogation practices say they agree with Obama’s cautious approach. Among them is the Senate’s No. 2 Democrat, Dick Durbin.
“There’s a big debate going on about holding the previous administration accountable for [its] actions, and I would say for the time being that the Obama team is focused properly on the future,” Durbin said. “Our economy is so weak; we’re in desperate need of jobs. Before we start looking at the pages of history in the Bush administration, we should be looking at the obvious need to create jobs and create a new economic climate in this country.”
There’s a good reason both Obama and Durbin are cautious and it has little to do with the state of the economy. Congress or any Commission named can easily carry out its duties. Congress, especially, can do more than one thing at a time.
The danger that both Democratic leaders see is in the extraordinary difficulty in investigating Bush in a non-partisan manner and whose findings would be accepted by a majority of Americans. If the investigation would be seen as a partisan witch hunt, it would not redound to the Democrat’s advantage and might even hurt them at the polls. This would seem to make some kind of a special prosecutor even more likely but even there, Obama and the Democrats will tread cautiously.
Perhaps there will be more of a push for the facts by the American people of what happened during the Bush years than one can currently imagine. But like Obama, Americans tend to be a forward thinking people who tend not to dwell on the past. Except in this case, there may be good reason to find out what went on at the White House during the last 8 years. Whether it can be done believably and fairly is another question entirely.