It's really quite simple. Truth and Reconciliation commissions, Congressional committees and blue ribbon commissions like the 9/11 Commission, are not deterrents to torture, illegal surveillance or lawyers on the Justice Department who attempted to justify the torture. They have a very limited function.
But they don't punish anyone; don't deter anyone, don't even put pressure on the people who committed the acts and cannot really get at the truth to determine responsibility. They do not bring the full force of America's 230 years of law down on the offenders. They don't truly help rein in the powers of future presidents or defense secretaries who want to do the same or similar acts the next time they react to what they see as an extraordinary crisis. And different presidents, Democrats and Republicans from Woodrow Wilson and the prosecutions during the Red Scare, to Franklin D. Roosevelt and the internment of 110,000 Japanese, Lyndon Johnson lying about the Gulf of Tonkin and to dramatically increase troop strength, nearly always find crisis and overreact.
Senator Patrick Leahy, the Chairman of the Senate Judiciary Committee, has called at different times for either a Truth and Reconciliation commission or a Blue Ribbon commission. Neither is appropriate.
The best truth and reconciliation model comes from the South African experience. In South Africa, these commissions were used to begin the healing after the brutality of apartheid. It grants the confessing wrongdoers immunity. It was for a different time and place.
The Blue Ribbon commission gets attention and, along with Congressional committees, can get exposures and may help lead to better laws. But they create the danger of interfering and at times making impossible criminal trials of criminals. And they let criminals go unpunished.
Senator Sheldon Whitehouse, a member of both the Judiciary Committee and Intelligence Committee and a former U.S. Attorney, supporting Leahy's call, said that a torture commission might need the power to immunize witnesses on a case-by-case basis, and "it is beside the point" if it endangers criminal prosecutions.
We should go ahead with criminal prosecutions. It is the only way, through grand juries, subpoenas and trials, to get the facts and help America clean up some of its recent past.
The American people, immersed as they are in the economic crisis, are angry about torture and other illegalities of the Bush administration and want those prosecutions.
The February, 2009 USA Today/Gallup Poll shows 38% of Americans favor criminal prosecution of torturers, 38% for prosecution of those who used illegal surveillance, and 41% for those involved in the subversion of the Justice Department. Americans by a wide margin are in favor of criminal prosecutions than independent or Congressional panels. Seventy-five percent of Americans believe something must be done - we can't walk away from the crimes against humanity committed in our name.
The argument is made that criminal prosecutions area too difficult, too lengthy, too expensive, too political and will keep the country divided. But there have always been political expensive and difficult trials. We have had long, expensive, political trials for John Dean during Watergate, Eliot Abrams during Iran-Contra, Scooter Libby today and even Aaron Burr nearly two hundred years ago.
Leahy argues against criminal prosecutions because "a failed attempt to prosecute for this conduct might be the worst result of all if it is seen as justifying dishonest actions." But that's true for every criminal prosecution - should murderers, John Ehrlichmann, Scooter Libby or Enron officials not be prosecuted because the possibility of an acquittal justifies their actions? If so, junk the criminal system.
We can't leave it to politicians. Many Democrats, including House Speaker Nancy Pelosi, are alleged to have known about the torture and surveillance programs and either approved or said nothing. Pelosi (who, interestingly, has called for criminal prosecutions) has consistently equivocated on what she knew and when she knew it. It's unlikely Democrats on commissions, let alone Republicans, are going to pursue the inquiry to its final end. They will undermine Congressional Commissions, and blue ribbon Commissions, but they cannot so easily undermine criminal prosecutions.
The criminal trials of the chief of the Bush defendants can certainly be shorter and probably less expensive than the Barry Bonds or Scooter Libby prosecution, and less purely political than Thomas Jefferson's presidentially controlled prosecution of Aaron Burr.
The Bush people violated some clear specific crimes. Failing to get wiretaps permission from the Federal Internal Security Courts is a felony. Representatives of the Justice Department, local police and federal agent who participated in break-ins or wiretaps without warrants, are guilty of clear and unambiguous federal crimes. Federal Agents who did illegal surveillance even when the Justice Department refused to sign off on its illegality can be found guilty. Violation of the Federal Anti-Torture Act, which has been on the books for years, bars citizens from committing torture abroad, is a felony.
The War Crimes Act of 1996 is violated even if there is not what the Bush defendants would claim is "torture." That act punishes those who act cruelly and inhumanely. Waterboarding, vicious dogs, and exposing detainees to temperature extremes could all be punished by a jury.
Bush's people, afraid of the applicability of the War Crimes Act, inserted a provision into a 2006 law that made the War Crimes Act retroactively ineffective. But Congress can change that now, that law can be used for prosecutions.
The defense will claim, say opponents of criminal trials, that defendants relied on the now infamous August 1, 2002 legal opinion of the Attorney General, Alberto Gonzales, and his assistants justifying torture and the opinions on illegal surveillance creating fog and evasion and therefore, they will get off. And that all the lawyers did was give their albeit controversial opinions, a full defense. Jurors will get confused by legal experts who support the views of the Bush lawyers. It's too complicated for a jury we are told.
But we have prosecuted lawyers, experts and those who rely on legal or accounting opinions in many cases. Kenneth Lay could refer to legal or accounting documents prepared to justify his case all day long and not be saved. The legal opinions rendered by Alberto Gonzales, John Yoo and David Addington are such transparent documents that an American jury of citizens is, at the very least entitled to have an opportunity to pass judgment on them. Even as lawyers within the Bush administration repudiated the opinions, the illegal practices went on. No jury would have difficulty in rejecting John Yoo's memorandum that reject the basic tenets of an American democracy.
Can a jury really decide the tough questions, such as whether Alberto Gonzales' opinion, concluding the Geneva Convention Protections do not apply to prisoners of war captured for Al Qaeda or the Taliban? Of course. A jury can determine if the legal opinion was a facade to justify actions already taken - only the legal process with grand juries and subpoenas has any hope of piercing the wall of defense that will be used to block that inquiry. Those memos were not used to interpret the law - they were intentionally written to change the law. No Commission can hope to get facts behind these opinions as quickly as the Courts.
Our criminal law has specific status that reach overseas to punish torturers. Section 2340A of our Federal Criminal Code makes it a crime for any person "outside the United States to commit or attempt to commit torture." But, say the critics of criminal prosecution, torture is too vague a word for a prosecution. Not so. Judges and juries routinely define much vaguer terms - what does "reasonable doubt of guilt" or "reasonable doubt of guilt with a degree of moral certainty." What does cruel and inhuman treatment mean? They are always past precedents to help us define these terms.
Juries determine competency in cases interpreting wills and estates, and sanity in criminal cases, with the help of experts, whom they often barely understand.
It is wrong to say that lower level officials, or lower level military personnel can get off by claiming they followed higher orders. They did what fellow soldiers did - they followed the morality culture created by their environment and superiors. That's not a defense. When police officers in Los Angeles, Jackson, or New York beat prisoners, or deny them rights, most know they are violating the laws - they do it nonetheless. And they can be and often are prosecuted.
At times CIA personnel and people within the White House knew with certainty they were acting illegally. When the CIA destroyed at least 92 interrogation tapes to cover up what was done to the detainees, they violated a specific court order that prohibited that destruction.
I don't have a religious faith in the majesty of the law. It is just the far best alternative.
Is the criminal prosecutors and the process itself often flawed? Of course. At times, are the guilty declared innocent and the innocent declared guilty? Of course. Do conviction make it far less likely that torture will continue? Probably so. Will a string of successful prosecutions ensure that we will never have Americans participate in torture or illegal surveillance? Probably not. Does it make torture and illegal surveillance less likely? Yes.
At the end of the day, I would rather have American jurors, bound by the Constitution and the law, make the decision rather than politicians or unelected blue ribbon commission members. I would rather have the judges, bound by precedent and law, determine what is, and is not legal.
President Obama has said this is not the time to look back but to look forward. There was a claim that the need for bipartisanship argued against prosecution. But the illusion of bipartisanship if it ever truly existed has been broken.
President Obama and the Congress should now name a Special Prosecutor.