In one week, the U.S. Constitution will be front and center as Barack Obama solemnly swears to "preserve, protect, and defend" it. Given all that has happened over the last eight years, that oath is not nearly as pro-forma as it used to be.
During his final press conference yesterday, President Bush said that when it came time "to protect the homeland" he "wouldn't worry about popularity." He would "worry about the Constitution of the United States." It wasn't clear, as it hasn't been for most of his time in office, whether his concern was directed at upholding the document or circumventing it.
So as the Obama Years are about to begin, one of the questions facing the new president is what will he do about the transgressions of the Bush Years? Will his promise to protect and defend the Constitution include an investigation into the assaults on it perpetrated by members of the Bush administration?
On change.gov, the website of the Obama transition team, there is a section where people can submit questions and readers can vote on the questions they most want the incoming administration to answer. The top question last week, receiving over 23,000 votes, came from Bob Fertik of democrats.com:
"Will you appoint a Special Prosecutor (ideally Patrick Fitzgerald) to independently investigate the gravest crimes of the Bush administration, including torture and warrantless wiretapping?"
Instead of having Obama respond to Fertik's question, change.gov posted an earlier reply from Joe Biden who had said, "President-elect Obama and I are not sitting thinking about the past... I think we should be looking forward, not backwards."
Picking up the dropped ball on Sunday, George Stephanopoulos directly asked Obama Fertik's question ("the most popular question on your own website").
Obama echoed Biden's reply: "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 backwards... My orientation is going to be to move forward."
Given the multiple -- and massive -- obstacles looming directly in front of him, Obama is wise not to be driving into the Oval Office looking in his rearview mirror. But I hope he will realize that moving forward and looking backwards are not mutually exclusive. Particularly if he isn't the one focused on the past.
There is no doubt that the economic crisis, Iraq and Afghanistan, health care reform, and the regulation of Wall Street should be the Obama administration's primary concerns.
But that doesn't mean we, as a country, should allow Bush and Cheney's offenses to accompany their perpetrators to a peaceful retirement in Texas and Wyoming.
That's why I am in favor of John Conyers' efforts to create a National Commission on Presidential War Powers and Civil Liberties -- a DC version of the Truth and Reconciliation Commission created after the fall of apartheid in South Africa. The new Commission would come with subpoena power, a $3 million budget, and the mandate to investigate a host of issues ranging from Guantanamo, to torture, to extraordinary rendition.
The Commission members would come from outside government -- appointed by Obama and leaders from both political parties. So the administration and Congress could continue looking and moving forward while the country avoids falling into the trap of allowing the outrages of the Bush administration to be forgotten or, worse, implicitly sanctioned.
Dawn Johnson, Obama's pick to head the Office of Legal Counsel, has eloquently made the case against turning the page and not looking back:
"We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure."
This becomes all the more important as Bush and Cheney continue their Polish the Legacy Tour -- aka Lie-a-palooza '09.
During his Monday presser, which he dubbed "the ultimate exit interview," Bush thanked reporters for giving him a chance to defend his record "because I think it's a good, strong record." And defend it he did, standing behind the war in Iraq, his handling of Katrina, the use of Gitmo, and his tax cuts. And he strongly disagreed with "the assessment that our moral standing [in the world] has been damaged."
As for the economy, Bush insisted, "I inherited a recession, I am ending on a recession. In the meantime, there were 52 months of uninterrupted growth." Which is kind of like saying the flight of the Hindenburg was fabulous up until the landing.
Cheney has been even more relentlessly on message -- ie pathologically in denial. Say what you will about the VP, the guy is savvy.
Watching him make the exit interview rounds, including his brazenly unrepentant turn with Wolf Blitzer on Sunday, has been like watching a brilliant lawyer defending a clearly guilty client. He has constructed a narrative of what has happened, cherry-picked and twisted every fact to back up his story, and then repeatedly hammered home his rendering of things, refusing to give an inch. His version of what has happened over the past eight years is air tight, iron clad -- and completely wrong.
Among the lowlights from his interview with Blitzer was his demonstrably false claim that the administration "did not base going after Saddam Hussein on any connection with 9/11," his demonstrably false claim that "there wasn't anything the administration did to create that inaccuracy on the part of the [pre-war] intelligence," and his demonstrably false claim that waterboarding "is not torture" because "we don't do torture."
Cheney also has a masterful ability to pass the buck, as when he told Bob Schieffer that the chaos and bloodshed that followed the fall of Baghdad should be laid at the feet of the Iraqi people: "There weren't any Iraqis early on who were willing to stand up and take responsibility for their own affairs." And that torture, which isn't really torture since we don't "do torture," was, in any case, okay because morally creative legal flunkies like John Yoo told them it was: "What we did was authorized by the legal authorities that were to be the source of that kind of advice."
As ridiculous and deceitful as Cheney's closing arguments are, inflicting this much damage to the Constitution then coming up with rationales that allow high crimes to dissolve into Sunday morning rhetorical squabbles requires an impressive level of brainpower. But it's brainpower at its most dangerous -- divorced from judgment, wisdom, and reality.
That's why we can't allow the historical revisionism to stand uncontested.
I am all for moving forward. But we can move forward as a nation that looks the other way when it comes to torture and lawlessness. Or we can move forward as the nation envisioned in the Constitution that Obama is about to solemnly swear to preserve, protect, and defend.