What's to be done about the lingering questions concerning the arguably unlawful activities of the Bush administration? I refer, for example, to such issues as the use of torture, the creation of secret prisons, the secret detentions of American citizens, and the NSA surveillance program. These actions, and many others, pose serious, still unresolved, questions about the legality and constitutionality of the government's conduct.
We cannot and should not shut our eyes to these questions. And we should not let ourselves be distracted from these questions by other pressing issues, such as the economic crisis facing the nation. If for no other reason than to set clearer ground rules for the future, we need a full public understanding of the decisions of the Bush administration. We need to know who made them, why they were made, why they were made in secret, whether they were justified, whether they were legal, and whether we can establish better decision making processes for the future.
We need to examine these decisions not so much to exact vengeance -- or even justice, but to learn from our experience. This is an important distinction. It is certainly not unprecedented for public officials to be criminally prosecuted for unlawful conduct. One need only recall Teapot Dome and Watergate to recognize that such prosecutions are perfectly plausible.
But criminal prosecutions of the members of an outgoing administration brought by the members of an incoming administration of a different political party are a terribly awkward business. The risk of actual or apparent partisan abuse in such circumstances is very real, and the Obama administration is almost surely interested in looking forward, rather than getting bogged down in potentially ugly and divisive disputes about the past. Moreover, the danger of unjust prosecution is especially great in situations like these, where the governing law is generally uncertain, the legal issues are complex, and the defendants may have acted in good faith at a time of national crisis. And, of course, criminal prosecutions in these circumstances run the risk of inhibiting future government officials from acting decisively in future crises.
I do not mean to suggest that criminal prosecutions for clearly and unambiguously unlawful conduct are unwarranted. If those conditions are satisfied, criminal punishment is appropriate. But such prosecutions will not enable us to do what we now most need to do, which is to gain a full public understanding of what our elected representatives did over the past eight years so we can openly and intelligently decide how to deal with similar challenges in the future.
To achieve that goal, we cannot rely on criminal prosecutions. Nor can we rely on other legal actions to ferret out the truth. Thus far, civil suits challenging the legality of the government's detention, surveillance, and interrogation policies have generally failed to expose much about these programs, in part because the courts have given excessive weight to the Bush administration's aggressive assertions of executive privilege, the state secrets privilege, and other national security-based claims of immunity. Given the current makeup of the federal judiciary, this is unlikely to change anytime soon.
In any event, it is not the function of courts to serve as general investigating bodies. Courts can certainly rectify specific legal wrongs, but what we need at the moment is a systematic and comprehensive understanding of the decisions of the Bush administration, and that is beyond the competence of the judiciary.
The right entity to initiate this inquiry is Congress. This is so, in part, because most of the decisions that most need the light of day involved efforts of the Bush administration to circumvent Congress's role in our constitutional system. The most problematic judgments of the Bush administration were instituted in secret in an effort to avoid public accountability and to evade the fundamental checks and balances of the American government. In a democratic society, such secret decision making is a direct affront to the separation of power and poses a threat to the very premise of self-governance.
The inquiry should not be conducted by Congress itself, however. Congressional investigations of the alleged abuses of the Bush administration would invite partisan grandstanding. What is needed, instead, is an independent commission, appointed jointly by Congress and the President, on the model of the 9/11 Commission.
A distinguished bipartisan commission, with broad investigative powers, could issue a useful report about what went right and what went wrong in the secret decision making processes of the past eight years. With the passage of time, we are now past the point where national security considerations would still necessitate much secrecy about such decisions, and to the extent such issues still exist, the commission should be able to address them, as they addressed similar issues in the 9/11 investigation.
The establishment of such a commission should be a high and immediate priority of both the next Congress and the new administration. The nation needs and deserves a credible, independent and bipartisan investigation that will enable both Congress and the President to take appropriate steps to avoid serious missteps in the future, and that will enable the American people to finally know what, exactly, was done in their name.
But not their ill gained fortunes, THAT they get to keep, waving their noses at the rest of us while laughing all the way to the (Swiss and Cayman Islands) bank.
Pardon my cynicism, but some people don't care about respectability, and they don't mind being shamed for the rest of their lives as long as they are insulated from constant universal derision. Luxurious gated ranches, fine food and wines, and tons of servants and yes men, not to mention dumb trophy eye and arm candy, have a way of keeping some people from remembering, or even thinking of, the harm and suffering they have caused.
But not to worry: their grandchildren, will enjoy not only fortunes vastly increased by time, tax loopholes and cronyism, not to mention respectability.
In the meanwhile, let the recipients of the harm and suffering eat cake (“the truth of what happened, and why”--much good that will do us... the ones still alive, that is)
So yes, by all means, let's not prosecute any of these a$$holes: let’s instead turn our other collective cheek and allow them to get away with acumulating enough to buy them power and influence down the line to do it all over again, as in the case of our own illustrious Karl Rove.
Others of us believe that 9/11 was simply the excuse for implementing changes they had long planned when they came to power.
These are not trigger-happy patriots but self-serving, power-hungry and greedy thieves.
A commission is fine, but make no mistake about it, if these acts go unprosecuted they WILL happen again, but in even more horrendous terms.
.It will be entertaining to watch the dems desperately trying to figure out a way to balme Bush....it should only take them a matter of minutes to come up with something..after all, it is second nature for them.
When that is done you have, for example, torture. Torture is not fighting terrorism, torture is terrorism.
Look, to allow this group to go out with nothing more than a Harvard case study is to beg for future abuses by future Presidents.
We are a nation of laws, but those laws are not honored simply because they appear on a piece of paper or parchment -- they are honored because of precedent.
To allow this gross and wholesale and entirely unprecedented criminality to go unpunished is to spit in the face of every soldier and citizen who has ever fought to preserve the integrity of this country's laws -- right back to and including the Founders by establishing a precedent that mocks their sacrifice.
Pardoning Nixon after Watergate may have "healed the country" but it kept alive remnants of the Nixon ideology that those in power can do no wrong (specifically, Dick Cheney and Donald Rumsfeld, without whom the country would have been much better off during the past 8 years).
Still, I can see the merits of your argument.
Here's a suggestion: appoint an independent prosecutor who will not start work until a specific date, giving the Truth and Reconciliation commission time to do its work. Perpetrators who come forward and confess to everything before the deadline get amnesty. Those who don't get screwed (once convicted).
Just my two cents on your idea. Thanks for a thought-provoking article.
We will sweep this chapter under the rug of "change" and content ourselves to say, once again, "America doesn't torture."
I get the impression looking into the issues you discuss would involve a lot more than the Republicans, and could even put the Democratic majority at risk in the next election, weakening candidates who survived by going along to get along. Joe the Chairman, just welcomed back the breast of Democrats, is a fine example of the type who wouldn't want any of this dredged back up, and one must believe his unwillingness to look into it was one of the reasons he kept that chairmanship.
I respectfully (but very emphatically) disagree. As thrilled as I am with the victory of the president-elect, hope is not the same as change. The neo-cons spent years plotting the most egregious constitutional violations in history. If they aren't convicted, then whatever modest change we accomplish now will be undone (or subverted) by the same people the next time they return to power. And they will return to power, because we will have done nothing to stop them. And they will be smarter and better able to hide their crimes. Note that Cheney and Rumsfeld both served in the Nixon administration. That cancer was de-bulked but obviously not removed.
"Joe the Chairman, just welcomed back the breast of Democrats, is a fine example of the type who wouldn't want any of this dredged back up, and one must believe his unwillingness to look into it was one of the reasons he kept that chairmanship."
I have to admit, this has the ring of truth to it, but Lieberman has proven himself willing to throw his allies under the bus. I believe if an independent prosecutor were breathing down his neck, he would sacrifice his former GOP bedfellows to save his own neck.
I am glad you disagree, and I feel the same way about Obama... But, in order to make anything happen, whether it's a truth and reconciliation commission, or something that seeks to punish for law-breaking, you will need to have a great deal of public outrage. The people in office haven't done anything about it, and I think there's a reason for that. The reason, whatever it is, is something they don't want the public to know, so they will find as many ways to drag their heels and resist it as they can. Meanwhile, people are just so happy to have Obama, they won't blame him for not doing anything on this, so why should he? All he has to do is say,"We're moving forward, not looking back." No political cost. The political cost would be for those who challenge the cult of the Presidency, and demand some "looking back." Those people will be further marginalized and probably vilified for turning on their own party...
I just don't see it happening under these conditions.
I want it to, and I feel the same about letting these people off the hook as you do. Unfortunately, I don't see the public as having it in 'em, and I think the elected officials don't give them half the credit I do.
The Constitution made no mention originally about term limits for Presidents. And yet, only a few tried to run for more than two terms, and only one HAD more than two terms. Why did no one get a third term between Washington and FDR? Because Washington stepped down willingly after his two terms, and set a precedent!
The Constitution says nothing beyond "The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of the President of the United States." in Article 1 section 3 clause 5. And yet, the Vice President took over if the President died. Why? Because John Tyler took the office after William Henry Harrison died, and no one challenged him when he did so!
If we allow the precedent of bush to stand, any future President will be able to claim all the powers that bush took, PLUS anything else that they want to grab.
If there is nothing done by the elected officials, what do you think the public will do about it? Do you think that they'll protest this more then they protested the war? More than they protested the actual torture pictures? More than the spying regulations? More than they've protested putting active military in the US? More than use military contractors? I don't think they will.
For the people in elected office, it IS about confidence in government. Maybe not for the common citizen, but for the elected official. If people have confidence, the government has power.
What I have seen is that people who protest in this "post-ideological" era are seen as whackos, loonies, leftists, hippies... And that has largely succeeded in keeping people from doing it. In fact, I think that this will be even more the case with a president as popular as Obama.
But without public outcry... there is no reason for the people in power to limit their power except conscience. SO,
"If we allow the precedent of bush to stand, any future President will be able to claim all the powers that bush took, PLUS anything else that they want to grab."
Sounds good to those who want to become more powerful. Those who they will have power over, might want to think about that.
The lesson to be applied here is: go after ALL the wrongdoers, unless you want to have to dethrone them again later.