The chair of the Senate Judiciary Committee says he wants a "middle ground" approach to investigating alleged Bush-era lawbreaking.
If there’s going to be any effort to account for the Bush administration’s alleged lawbreaking and abuses of power, it may have to come from the Senate Judiciary Committee.
On Monday, Committee Chair Sen. Pat Leahy (D-Vt.), a longtime critic of the Bush White House’s national security policies, gave a speech at Georgetown University in which he suggested one possible way to hold the previous administration accountable. Leahy spoke of what he called a “middle ground” proposal, a truth and reconciliation commission that would investigate lawbreaking without necessarily prosecuting violators.
The key section of Leahy’s speech is below.
We have succeeded over the last two years in revitalizing our Committee’s oversight capabilities. The periodic oversight hearings with the Attorney General, the FBI Director, the Secretary of Homeland Security, and others will continue. 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. 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.
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.
It is something to be considered. It is something Professor Bernstein, for whom this lecture series is named, might have found worth studying. We need to see whether there is interest in Congress and the new administration. We would need to work through concerns about classified information and claims of executive privilege. Most of all, we need to see whether the American people are ready to take this path.
Edmund Burke said that law and arbitrary power are eternal enemies. Arbitrary power is a powerful, corrosive force in a democracy. Two years ago I described the scandals at the Bush-Cheney-Gonzales Justice Department as the worst since Watergate. They were. We are still digging out from the debris they left behind. Now we face the worst economic crisis since the Great Depression while still contending with national security threats around the world. This extraordinary time cries out for the American people to come together, as we did after 9/11, and as we have done before when we faced difficult challenges.
Gabriel Winant is a graduate student in American history at Yale. More Gabriel Winant.
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