Proposing the creation of a "truth commission" to examine the high crimes and misdemeanors of the Bush-Cheney administration, Senate Judiciary Committee chair Patrick Leahy declared Monday that, "The past can be prologue unless we set things right."
"As to the best course of action for bringing a reckoning for the actions of the past eight years, there has been heated disagreement," the Vermont Democrat explained in a lecture delivered at Georgetown University under the title: "Restoring Trust in the Justice System: The Senate Judiciary Committee's Agenda In The 111th Congress."
Outlining differences of opinion on the issue, Leahy said:
There are some who resist any effort to investigate the misdeeds of the recent past. Indeed, some Republican Senators tried to extract a devil's bargain from the Attorney General nominee in exchange for their votes, a commitment that he would not prosecute for anything that happened on President Bush's watch. That is a pledge no prosecutor should give, and Eric Holder did not, but because he did not, it accounts for many of the partisan votes against him.
There are others who say that, even if it takes all of the next eight years, divides this country, and distracts from the necessary priority of fixing the economy, we must prosecute Bush administration officials to lay down a marker. Of course, the courts are already considering congressional subpoenas that have been issued and claims of privilege and legal immunities - and they will be for some time.
There is another option that we might also consider, a middle ground. A middle ground to find the truth. We need to get to the bottom of what happened -- and why -- so we make sure it never happens again.
To that end, Leahy continued:
One path to that goal would be a reconciliation process and truth commission. We could develop and authorize a person or group of people universally recognized as fair minded, and without axes to grind. Their straightforward mission would be to find the truth. People would be invited to come forward and share their knowledge and experiences, not for purposes of constructing criminal indictments, but to assemble the facts. If needed, such a process could involve subpoena powers, and even the authority to obtain immunity from prosecutions in order to get to the whole truth. Congress has already granted immunity, over my objection, to those who facilitated warrantless wiretaps and those who conducted cruel interrogations. It would be far better to use that authority to learn the truth.
During the past several years, this country has been divided as deeply as it has been at any time in our history since the Civil War. It has made our government less productive and our society less civil. President Obama is right that we cannot afford extreme partisanship and debilitating divisions. In this week when we begin commemorating the Lincoln bicentennial, there is need, again, "to bind up the nation's wounds." President Lincoln urged that course in his second inaugural address some seven score and four years ago.
Rather than vengeance, we need a fair-minded pursuit of what actually happened. Sometimes the best way to move forward is getting to the truth, finding out what happened, so we can make sure it does not happen again. When I came to the Senate, the Church Committee was working to expose the excesses of an earlier era. Its work helped ensure that in years to come, we did not repeat the mistakes of the past. We need to think about whether we have arrived at such a time, again. We need to come to a shared understanding of the failures of the recent past.
Though he acknowledged that the high crimes and misdemeanors of the Bush-Cheney administration were worse than the Watergate-era abuses of former President Richard Nixon and his aides, Leahy was unduly deferrent to the White House, saying that, "We need to see whether there is interest in (in this proposal from) the new administration."
In fact, Leahy and other members of the legislative branch are making a mistake when the defer to the executive branch when it comes to taking the steps that the Judiciary Committee chairman says should be taken to repair a broken system of checks and balances.
This was made painfully clear at Barack Obama's press conference where, after being asked about Leahy's proposal, the new president did not exactly wrap himself in the Constitution.
President Barack Obama said Monday he would examine a leading senator's plan to investigate allegations of wrongdoing against former Bush administration officials, but was "more interested in looking forward."
Though he acknowledged that "nobody is above the law" and said that his administration would leave "no doubt" that the United States does not torture, follows the Geneva Conventions and respects the rule of law, Obama stuck to the line he has clung to for months: "generally speaking, I'm more interested in looking forward than looking backwards."
"I will take a look at Senator Leahy's proposal," the president said, "but my general orientation is to say, 'Let's get it right moving forward.'"
If Obama was teaching a Constitutional law course, he would have taken a different line. Unfortunately, he has decided to play politics with the matter of executive accountability.
Leahy should not wait for an O.K. from the White House.
The establishment of a truth commission -- first advanced by Ohio Congressman Dennis Kucinich as a compromise short of the impeachment that George Bush and Dick Cheney so richly deserved -- is the least that Congress can do to begin taping together a shredded Constitution.
© 2009 The Nation
John Nichols is Washington correspondent for The Nation and associate editor of The Capital Times in Madison, Wisconsin. A co-founder of the media reform organization Free Press, Nichols is is co-author with Robert W. McChesney of Tragedy & Farce: How the American Media Sell Wars, Spin Elections, and Destroy Democracy - from The New Press. Nichols' latest book is The Genius of Impeachment: The Founders' Cure for Royalism.