Will We Ever Learn the Truth?
washingtonpost.com
By Dan Froomkin
Special to washingtonpost.com
Thursday, November 13, 2008
Will we ever find out what President Bush really did in our name?
There's so much we still don't know -- about torture, warrantless wiretapping, and the politicization of the Justice Department, just for starters.
Once Bush leaves office, will there be congressional investigations? Criminal investigations? Bipartisan commission investigations? Will President Obama make public all the relevant records? Will ex-president Bush still try to assert executive privilege? Will it work?
Charlie Savage explores some of these questions in today's New York Times. In 1953, Congress established "a precedent suggesting that former presidents wield lingering powers to keep matters from their administration secret," he writes.
"Now, as Congressional Democrats prepare to move forward with investigations of the Bush administration, they wonder whether that claim may be invoked again. . . .
"Topics of open investigations include the harsh interrogation of detainees, the prosecution of former Gov. Don Siegelman of Alabama, secret legal memorandums from the Justice Department's Office of Legal Counsel and the role of the former White House aides Karl Rove and Harriet E. Miers in the firing of federal prosecutors. . . .
"[I]nvestigators hope that the Obama administration will open the filing cabinets and withdraw assertions of executive privilege that Bush officials have invoked to keep from testifying."
But, as Savage notes, it is not clear "how a President Barack Obama will handle such requests. Legal specialists said the pressure to investigate the Bush years would raise tough political and legal questions.
"Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor's tenure. Mr. Bush used executive privilege for the first time in 2001, to block a subpoena by Congressional Republicans investigating the Clinton administration."
And even "if Mr. Obama decides to release information about his predecessor's tenure, Mr. Bush could try to invoke executive privilege by filing a lawsuit, said Peter Shane, a law professor at Ohio State University.
"In that case, an injunction would most likely be sought ordering the Obama administration not to release the Bush administration's papers or enjoining Mr. Bush's former aides from testifying. The dispute would probably go to the Supreme Court, Mr. Shane said."
Carrie Johnson writes in The Washington Post that Obama advisors charged with overhauling the Justice Department don't quite know where to begin, though "[t]opping the list of concerns is the Office of Legal Counsel, a once-obscure operation whose advice guides some of the government's most sensitive and controversial policies, from domestic wiretapping to the appropriateness of handing out public funding to religious groups.
"Many of the OLC's memos on interrogation and warrantless eavesdropping remain secret, even though lawmakers have clamored for their release. Democrats say they expect to find fresh surprises when they open the legal vault.
"Officials at interest groups, including the Center for American Progress and People for the American Way, have called on President-elect Barack Obama to devote significant attention to the legal office."
But Johnson writes that "Obama will have to do a careful balancing act. At a conference in Washington this week, former department criminal division chief Robert S. Litt asked that the new administration avoid fighting old battles that could be perceived as vindictive, such as seeking to prosecute government officials involved in decisions about interrogation and the gathering of domestic intelligence. Human rights groups have called for such investigations, as has House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).
"'It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries,' Litt said. 'It would really spend a lot of the bipartisan capital Obama managed to build up.'"
Salon blogger Glenn Greenwald, however, is outraged by Litt's argument: "There is a coherent way to argue against investigations and prosecutions of actions by Bush officials: one could argue that they weren't illegal. . . .
"But that's not what Litt is arguing here. Instead, his belief is that Bush officials should be protected from DOJ proceedings even if they committed crimes. And his reason for that is as petty and vapid as it is corrupt: namely, it is more important to have post-partisan harmony in our political class than it is to hold Presidents and other high officials accountable when they break the law.
"How is this anything other than a full-scale exemption issued to political leaders to break our laws? . . .
"To argue that new administrations should refrain from investigating crimes that were committed by past administrations due to the need to avoid partisan division is to announce that the rule of law does not apply to our highest political leaders. It's just as simple as that."
Meanwhile, Mark Benjamin writes for Salon: "With growing talk in Washington that President Bush may be considering an unprecedented 'blanket pardon' for people involved in his administration's brutal interrogation policies, advisors to Barack Obama are pressing ahead with plans for a nonpartisan commission to investigate alleged abuses under Bush.
"The Obama plan, first revealed by Salon in August, would emphasize fact-finding investigation over prosecution. It is gaining currency in Washington as Obama advisors begin to coordinate with Democrats in Congress on the proposal. . . .
"A common view among those involved with the talks is that any early effort to prosecute Bush administration officials would likely devolve quickly into ugly and fruitless partisan warfare. Second is that even if Obama decided he had the appetite for it, prosecutions in this arena are problematic at best. . . .
"Instead, a commission empowered by Congress would have the authority to compel witnesses to testify and even to grant immunity in exchange for information. Should a particularly ugly picture emerge, the option of prosecutions would still theoretically be on the table later, however unlikely."
Benjamin writes that constitutional scholars say issuing a blanket pardon "would be an unprecedented move." But "[t]here is no authority that can stop the president from doing so if he wishes, and there is no outside check or balance to revisit such a decision, however controversial it may be. . . .
"The politics of it would be fraught with danger, however, and could so blemish Bush's legacy that some doubt he would go so far. 'A pardon is an admission of guilt,' noted Donald Kettl, a political science professor at the University of Pennsylvania."
And as Benjamin notes, there are "some constitutional scholars who believe a pardon might actually facilitate more complete participation in a fact-finding commission, by removing the threat of looming liability."
A Commission Just for Gitmo?
Carold Rosenberg writes for the Miami Herald: "Two human rights groups urged the future Obama administration on Wednesday to appoint a well-funded commission with subpoena power to systematically examine the U.S. treatment of detainees at Guantánamo and elsewhere since the 9/11 attacks.
"Activists at the University of California, Berkeley, and the New York-based Center for Constitutional Rights made the recommendation as they released a two-year study of the impact of U.S. detention and interrogation practices on former captives at Guantánamo Bay, Cuba. . . .
"They say the group should tackle still-open questions surrounding the interrogation, detention and rehabilitation of former detainees, with an eye toward recommending criminal investigations if it uncovers 'any crimes at all levels of the chain of command.'"
A press release quotes Eric Stover, director of the UC Berkeley Human Rights Center and co-author of the report, saying: "We cannot sweep this dark chapter in our nation's history under the rug by simply closing the Guantánamo prison camp. The new administration must investigate what went wrong and who should be held accountable."
And Patricia Wald, who served on the U.S. Court of Appeals and the International Criminal Tribunal for the Former Yugoslavia, is quoted as saying: "Carefully researched and devoid of rhetoric, the UC Berkeley report adds a new chapter to America's dismal descent into the netherworld of prisoner abuse since the tragic events of 9/11. It provides new insights into the lingering consequences of unjust detention."
Scooter Libby Watch
Meanwhile, MSNBC's Chris Matthews launched a pardon countdown of sorts on his show last night: "We spent many months here on Hardball focusing early attention on the role played by the vice president's office in pushing the case for the Iraq war, often the bogus case, especially the argument that Iraq was trying to buy nuclear materials in Africa.
"Well, last year, the vice president's chief of staff, Scooter Libby, was convicted of multiple felony counts for lying and obstructing justice in the matter. At the time, the prosecutors said there was a cloud hanging over the vice president himself.
"Well, having commuted Mr. Libby's sentence, the question is whether or not -- or whether when President Bush will grant Scooter Libby a full pardon. He has 69 days to do it." |
