Investigating Bush's Crimes
Up to this point, political influence has been used to block accountability. Investigations are still under way at the Justice Department and other agencies that touch on important aspects of the Bush administration's detainee policy. One probe is looking into the mysterious destruction of evidence of interrogations using highly coercive techniques that was sought in pending criminal cases. Another probe, nearly complete, is examining the circumstances behind the crafting of the notorious torture memos in the black hole of the Bush Justice Department, the Office of Legal Counsel. Under the Bush administration, these and other investigations were often bottled up, as senior officials refused to cooperate and the White House--which functioned as the nerve center for Justice Department political operations--refused to turn over documents. On occasion, they were shut down directly by order of President Bush. One criminal investigation launched by FBI agents at Guantánamo was ordered closed by the head of the Justice Department's criminal division, Alice Fisher, who may herself emerge as a target of a criminal investigation. Under the transparency policies Obama announced during his first week, and under the detainee policies he is busily putting in place, the administration will unblock internal probes and mandate that federal employees, including White House employees, cooperate with them. Realization that this was in the works may have given rise to President Bush's January 16 "gag letters" issued to Karl Rove, Harriet Miers and Joshua Bolten, instructing them to keep quiet in the face of a Congressional probe about their dealings with the Justice Department.
Leading Congressional Democrats are proposing a way forward. In January House Judiciary Committee chair John Conyers announced a blue-ribbon panel to be appointed to conduct an investigation. He is also proposing that the statute of limitations be modified to take the time pressure off potential criminal investigators. Senate Judiciary Committee chair Patrick Leahy put forth a proposal of his own a few weeks later in a presentation at Georgetown University. Leahy pressed the idea of a "truth commission," similar to the approach used in South Africa after the fall of the apartheid regime. Bush administration officials who come forward and offer a full accounting of their deeds could get immunity for their testimony; those who keep silent or give false statements could face prosecution. The Leahy and Conyers approaches share a number of elements, including the notion that the commission would consist of eminent people who are "above the political fray," would get subpoena power and would be fully staffed and resourced. Both Conyers and Leahy cite the 9/11 Commission as a model--a Congressionally authorized commission backed by presidential authority, a hybrid model that would eliminate some of the potential legal challenges that a purely Congressional commission might face. Conyers is, however, far more concerned about building a solid record that can form the basis of prosecutions, whereas Leahy offers immunity as a reward for candor.
There are unmistakable signs of momentum in support of a commission approach in Washington. Nancy Pelosi and other Democratic Congressional leaders who once sang in the "let's forgive and forget" choir are now signaling their support for a commission. But what about the Obama White House? Following a meeting between Leahy and Greg Craig, Obama's White House counsel, the White House was committed only to an ongoing discussion.
But the commission approach may, depending on some critical details, offer the best solution to the impasse. Moreover, it may well suit Obama's needs for the commission to be the creation and initiative of Congress rather than of his administration. It would allow a comprehensive investigation without embroiling the White House in the process. A commission would be in a position to put to rest some persistent questions, particularly regarding how torture came to be embraced as a matter of policy and whether the administration ever got actionable intelligence from tortured suspects that could conceivably offset the immense damage that torture has done to the moral authority of the United States around the world. Most significant, if a commission recommended a criminal investigation to the Attorney General, and if it recommended appointment of a special prosecutor, that would deflect suggestions that the process was "political."
On the other hand, investigative commissions do not actually do justice. They cannot bring charges, and in the process of granting immunity for testimony they can muddy the waters for a later prosecutor. Any commission would need the advice and guidance of professional prosecutors, who could help to assure that it would prudently exercise the right to grant immunity and would avoid damaging future prosecutions.
Criminal investigations and prosecutions might be avoided under the Leahy approach and might be delayed under the Conyers approach. But whatever approach is finally settled upon, it seems increasingly clear that there will be multiple investigations: a commission of some sort, Congressional hearings (which are promised in any event) and internal probes within the government, which will likely be pursued delicately and quietly.
Though the wheels of justice grind slowly, they grind exceeding small. One year from today, it is likely that a large number of the secret documents that form the backbone of Bush detention policy will be public and many of their authors will have been publicly interrogated about them. We will have a better sense of how torture crept into the American interrogations system and whose authority was invoked to ram it through in the face of legal hurdles once thought insurmountable. And one year from today, we will probably still be asking whether any of the authors of this national tragedy will or should be prosecuted. That outcome is not likely to satisfy either side of the debate. But it may well be consistent with the interests of justice, which demands a complete exploration of the facts before anyone is held to account. That outcome fully reflects the Obama style.