THE BLOG
05/30/2009 05:12 am ET Updated May 25, 2011

Why Congress Must Hold Hearings

"Of course, our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our Nation has been and will continue to be a strong supporter of [the Geneva Convention] and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with the military necessity, in a manner consistent with the principles of Geneva."

-- February 7, 2002 Memorandum from President George Bush Regarding the Humane Treatment of al Qaeda and Taliban Detainees

"C.I.A. interrogators used waterboarding, the near-drowning technique that top Obama administration officials have described as illegal torture, 266 times on two key prisoners from Al Qaeda, far more than had been previously reported. The C.I.A. officers used waterboarding at least 83 times in August 2002 against Abu Zubaydah, according to a 2005 Justice Department legal memorandum. Abu Zubaydah has been described as a Qaeda operative."

-- Waterboarding Used 266 Times on 2 Suspects, New York Times, April 19, 2009

Now that the Bush Administration, mercifully, has come to an end, details are beginning to emerge about just how much that Administration compromised cherished American principles in the name of "national security." Washington was gripped last week by reports that officials at the highest levels of the Bush Administration had a direct role in authorizing the use of interrogation techniques that can only be characterized as torture.

While President Bush committed to "treat detainees humanely" in 2002, the torture that followed demonstrates that there was a disconnect between his Administration's public statements and its actual conduct. We must get to the bottom of how our military and intelligence officers came to engage in the brutal forms of torture we now know took place. Thorough and exhaustive Congressional hearings modeled on the Church Committee hearings in the 1970's, which investigated illegality by the CIA and FBI, are the best way to accomplish this objective.

There are many levels on which this torture policy is troubling, from the potential retribution that may be inflicted on future American prisoners of war to the violation of international law. However, it is most appalling that the men and women of the American military and intelligence community who tortured prisoners did so in our collective name. When they subjected prisoners to waterboarding and sleep deprivation, they did so under the color of that same American flag to which we all pledge allegiance. The effect has been to erode the world's sense of America and Americans.

Congress must fully investigate to answer the myriad of outstanding questions regarding the Bush terror program. For example, we know that legal advisors, such as John Yoo, provided legal justifications for these interrogation techniques. However, we do not know who sought these justifications. Who was the architect of this policy? When did he and/or she design the policy? What were the motivations behind the policy? How much of the policy contemporaneously was shared with members of Congress?

Of course, the Bush torture program is not the first time in American history that our government deliberately has acted contrary to our values in time of war. Going back to the Alien and Sedition Acts passed by Congress and signed by President John Adams in 1789, to the interment of the Japanese during World War II, our country occasionally has trampled on the civil liberties of individuals when it has faced external and internal threats. As with these other dark moments, however, it is critical that we learn from our mistakes. It is critical that Congress examine the nature and scope of the Bush torture program to determine what went wrong to ensure that it is not repeated.

Some have said that the Justice Department should investigate to determine if any laws were broken and prosecute any law-breakers to the full extent of the law. However, the threat of prosecution likely will lead to stonewalling on the part of Administration officials for fear of self-incrimination. We saw this in the prosecution of L. Scooter Libby for his involvement in the Valerie Plame affair. Libby never testified in that case and our understanding of what the President and Vice President knew about the effort to discredit Ambassador Joe Wilson and when they knew it remains incomplete. Accordingly, witnesses at the hearings should be granted immunity from prosecution so that the members of Congress conducting the investigation will be able to get answers to the important outstanding questions.

As a criminal prosecutor, I appreciate the important role prosecution plays in achieving justice. However, in this instance, truth is more important than retribution and punishment. The individuals who committed these acts will have to live with the shame of their actions and the government leaders who authorized these acts will suffer the harsh judgment of history.

It is imperative that Congress immediately launch an investigation into the torture practices the Bush Administration undertook on our behalf. We need to have an exhaustive understanding of how our nation's military and intelligence communities created the apparatus of torture to ensure that torture never again takes place in our name.