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Sandra Day O'Connor Should Lead Torture Investigation

05/28/2009 05:12 am ET | Updated May 25, 2011

Is there anyone in the country more reliably moderate than retired Supreme Court justice Sandra Day O'Connor? She is a lifelong Republican who was the critical vote that put George Bush into office in 2000. For which liberals will probably never forgive her.

She's also the person who said about Republican attacks against an independent judiciary, "It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings." She was also the deciding vote against overturning Roe v. Wade. For which conservatives will never forgive her.

Both sides might have a bone to pick with her, but there is no question that she has maintained a stubborn impartiality throughout her long career. This is why I think she might be just the right person to head an impartial investigation of the possible torture committed under the Bush administration.

I personally don't favor a truth commission, simply because we already know most of what happened, the real question is what are we going to do about it? But if there is a nonpartisan Truth Commission, O'Connor should probably lead it.

I would go even further and ask her to be the special independent prosecutor in a criminal investigation of torture by the Justice Department. Now that we largely know what was authorized under Bush and how it worked its way down the chain of command and what the results were, what we really need is someone to determine if specific laws were broken.

O'Connor might not have a lot of experience in hands-on prosecution of cases, so admittedly independent prosecutor would seem to be a strange role for her, but I'm not proposing she get in the courtroom and try these cases herself. I think the proper role for her is to figure out if anyone has actually committed a crime here and determine if prosecution is necessary in the first place. And then if that determination is made, there are plenty of capable prosecutors in the country.

My hunch is that O'Connor, given her cautious nature, would be very reluctant to call anything a crime by the president or his deputies. But if she got overwhelming evidence that in fact a crime was committed, she would have the courage not to ignore that evidence. If the evidence in this case eventually passes the O'Connor barrier, then the American people can be confident that this issue was not politicized but given the judicial scrutiny it deserved.