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Monday, November 24, 2008

Unlocking The Secrets

by digby

I've written a bit about this notion of a bipartisan, 9/11 style commission to investigate the abuses of the Bush administration and for a number of reasons I've been fairly pessimistic that anything like it would come to pass or that it would accomplish anything. But you never know ...

Here's a fascinating article
by Charles Holman from this month's Washington Monthly called "The Last Secrets Of The Bush Administration" which tackles all these issues and makes a good argument for establishing a "9/12" Commission. He lays out all the rational political reasons why the administration and the congress won't do this, including a fascinating bit a history about the fallout from the Church Commission in the 1970s which I was unaware of:

[T]he unfortunate fact is that such investigations, while necessary, tend to be politically poisonous for the lawmakers who run them. Frank Church had presidential aspirations in 1975, but the investigation ate up so much of his time that it kept him from campaigning (he later groused that it might have cost him a shot at being Jimmy Carter’s vice president, too). The public and Congress, who had been furious about agency abuses of power in 1975, had mostly lost interest by the time the committee delivered its report a year later. Only one of its recommendations—the surveillance court—actually made it into law, and Church lost his Senate seat in the 1980 election following spurious accusations that his investigation had led to the assassination of a CIA station chief in Greece. The chairman of the concurrent investigative committee in the House, New York Democrat Otis Pike, saw his reputation similarly battered, and left office in 1979.

You know they will ...

Holman is bullish on the idea of a commission if it's structured correctly and for some very interesting reasons. It's my long held view that it's a grave mistake to allow these people to go unpunished, because it inevitably leads to further (and probably worse --- they always are) abuses down the road. The zombies need to be vanquished once and for all. But as he points out in the article, just as important is the fact that the agreed upon national narrative of this period is written that says the Bush administration was clearly wrong to do what it did and that it was not an acceptable response to a threat. It's not that this country doesn't have a long history of such abuses, it does. But normalizing the idea that suspending habeas and committing kidnapping, torture and indefinite detention to "keep us safe" leads to the inevitable expansion of that idea into our domestic legal system, which is already bad enough. (I think tasers are a part of that acceptance of "antiseptic" government sanctioned coercion.) This is important across a wide range of issues (not the least of which is that America's reputation in the world is just slightly above Pol Pot's at the moment.)

Holman writes:

With their strong majorities, the Democrats in Congress can remedy many of the 9/11 Commission’s institutional failures from the get-go, giving the new commission enough time, money, and subpoena power to do its work. Appointing a respected bipartisan membership will be crucial, because of the simple fact that most of the people who know things we need to know are Republicans. Addington and Gonzales will probably never provide useful information about what they did, but their immediate subordinates might, if they are given the right forum in which to do so. Much of what we know now comes from the handful of them who have already come forward. James Comey, a former deputy attorney general, offered up to a Senate committee the story of the attempt by Gonzales and White House Chief of Staff Andrew Card to get Attorney General John Ashcroft to sign an extension of the NSA’s secret wiretapping program while Ashcroft was ill and drugged in a hospital room. Jack Goldsmith, the former OLC head, has published an illuminating memoir of his time in the administration that fills in a great deal of granular detail about how Cheney, Addington, and Gonzales pursued their agenda. Both Comey and Goldsmith are staunch conservatives who agreed with the Bush administration on many principles, but not with the unconstitutional methods by which it pursued them. Comey may have been willing to volunteer his story to a Democratic Senate committee, but a bipartisan commission could be instrumental in reaching more reluctant administration veterans. Some might talk out of a sense of duty, as Comey and Goldsmith appear to have done. Others might be persuaded to testify in order to clear their names and position themselves for future appointments. The crucial thing is to define the question as what happened, not whether it was right. Now is not the time to argue with Jack Goldsmith about what constitutes a legal interrogation technique. Now is the time to get him to help explain what those techniques were.

The commission can sweeten the deal by offering future immunity to anyone willing to testify, making it clear that its goal is to fill in the history of the Bush years, not to send anyone to jail. Otherwise, says Jim Dempsey, the vice president for public policy at the Center for Democracy and Technology and a former House Judiciary Committee counsel, "all the people who know what you want to know come under the protection of the Fifth Amendment. They lawyer up, and the whole inquiry gets frozen." (John Yoo did just that this summer, arriving with high-powered defense attorney Miguel Estrada at a House subcommittee hearing.) And as tempting as it is to believe otherwise, the odds of any major Bush administration figure serving time for what happened over the past eight years are pretty long under even the best of circumstances. Remember Goldsmith’s get-out-of-jail-free card: it would be difficult to convict anyone in a position of authority on charges related to interrogation or wiretapping, because those actions were legitimized with OLC memos. At most, a few CIA interrogators would go to prison, and the big fish would go free, á la Abu Ghraib; and this summer, Congress—the Democratic Congress—absolved the telecommunications companies that helped the NSA listen in on phone calls and e-mail exchanges. The U.S. attorney firings? Maybe a few tangentially related perjury convictions. Invading Iraq on false pretenses? Henry Kissinger did worse, and won the Nobel Peace Prize. And for all of the above, Bush could always borrow a page from his father, who less than a month before leaving the Oval Office preemptively pardoned half a dozen of his fellow Reagan administration officials— including the defense secretary—for their involvement in the Iran-Contra affair, sinking an independent prosecutor’s six-year investigation.

Most importantly, a commission tasked with creating the be-all, end-all record of a tumultuous political era makes a powerful implicit offer to potential witnesses: the prospect of having some small influence on how they are viewed by history. This is why once-loyal administration officials talk to Bob Woodward and publish memoirs that polish their reputations at the expense of their former bosses’, and why the 9/11 Commission was ultimately able to wrestle testimony—albeit unsworn—out of two presidents and vice presidents on the subject of their own failures. It’s not crazy to think that one or two staffers from the Office of the Vice President, weighing the risk of coming off badly in another witness’s telling against the limited political rewards of loyalty to an administration whose marquee names will be out of power for quite some time, might volunteer their own accounts of the past eight years; they would be instrumental in helping to clear away the unknown unknowns and suggesting which questions to ask.

I think there's almost no chance that the new Obama administration will pursue prosecutions and even less that the congress will do anything on its own. They can't even find it in themselves to deny Joe Lieberman a chairmanship. What are the chances they're going to prosecute Dick Cheney for war crimes? But there are those among Obama's advisors and among members of congress who understand that this should not be swept under the rug and if they can come up with some sort of commission, it's something.

Will it tell the "true story?" I doubt it. But it might just be the kind of cautionary tale that ensures that a new generation of Americans don't grow up thinking that it's normal for their government to torture and suspend portions of the the Bill of Rights at will. I think that's the bare minimum we should expect from this new, allegedly liberal government.

Update: Dahlia Lithwick was terrific on Maddow tonight on this issue wondering why Obama doesn't seem to be willing to expend political capital on these issues. She claims he's getting two pieces of irreconcilable advice ---- half of his advisors are saying he has to pursue this and the other half who say we can't be playing the blame game and observes that there are reasonable legal questions about all this that aren't being asked; the considerations all seem to be political. (I would just point out that from a crassly political standpoint, showing these defeated Republicans testifying about their crimes, turning on each other and generally making people's stomach's churn at the mere sight of them is an investment in their political future --- a form of aversion therapy.)

Maddow asked a good question: If you allow it to stand without a full public airing does it "legalize" it for the future. I think so. Once the precedent is set they will use it again. And the public, like the proverbial frogs in the slowly heating water, don't even realize they are losing not just their rights, but even the idea of their constitution.

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