First published on APRIL 23, 2009
There are many options available to both President Obama and the Congress regarding investigating and prosecuting people who were in the CIA, the Justice Department, and the White House for the use of torture during the Bush Administration.
What I would like to do here is encourage a discussion in the comments to this post about the pros and cons of the various ways a probe of the activities during the Bush years might be undertaken.
Of course, there are many who think that there should not only be no probe but that the memos from the Justice Department approving requests from the CIA to use "enhanced interrogation techniques" should never have been released in the first place.
Roger Cohen, writing in today's New York Times, typifies the argument that there should be no probe at all, no investigation, no prosecution. "I don’t think this recovery would be served by prosecutions, either of C.I.A. operatives or those who gave them legal advice. Such legal action, if initiated, would split the intelligence services and the military in paralyzing ways at a time when two wars, in Iraq and Afghanistan, are still being fought. The country would be lacerated."
Of course, Mr. Cohen, who titles his Op Ed piece "No Time for Retribution" offers no actual analysis for why he feels that any prosecutions would split the intelligence and military and paralyze them, let alone why it would lacerate the country. His biggest mistake is what most who argue for looking the other way make. He sees any actions toward getting to the bottom of this mess as "retribution." I see such actions as necessary if we are to do justice.
There may well be some who are seeking retribution; but justice demands, regardless how people feel on either side of this issue, that some form of investigation and likely prosecution is required. To do less is to deny that the United States is any longer the moral leader of the world, but rather it is a large, imperialistic, jaded and immoral force.
I do not doubt that we can be such a force, because between 2002 and 2008 our nation's leaders turned us into such a nation in the eyes of the world. Regardless, our history was not besmirched by such leadership for almost all of the over 200 years of our existence. It is time, if we do nothing more, to clear our name, to call out to the world that we take seriously the need for justice within our own government, and to be the transparent nation that our President says we will be under his administration.
Ways to probe the injustices perpetrated under the Bush Administration.
With Executive Branch initiative.
1. Let the Justice Department initiate an investigation of both its own activities and those of the CIA. This turns the problem over to the Attorney General and somewhat puts a barrier between Justice and the current Administration.
2. Either the White House or the Justice Department appoints a Special Prosecutor to look into the matter. This runs the risk of removing the discussion from the public eye for several years, since a Grand Jury will immediately be created and all testimony will be secret, much as the situation was involving Scooter Libby.
3. The President creates a bipartisan Commission, similar to the 9/11 Commission to investigate and report. Assuming this commission were given subpoena power and the power to recommend prosecution to the Justice Department, and assuming that this Commission was required to report periodically on the status of its work this might provide better visibility to the public.
4. The President creates a Commission that includes the other nations who also participated as allies in the Iraq War. This idea is highly unlikely to happen but has been floated by enough people that I have added it here.
5. The President create a Truth Commission similar to the way that South Africa did at the end of apartheid. That Commission was designed to shed light on the actions of the past and allow those who participated in those actions to denounce their own part in those actions. But it was not set up to prosecute, just to bring to light the atrocities, to shame those who were culpable and to give them an opportunity to apologize to the nation.
With Congressional initiative
1. Various Committees in Congress could hold additional oversight hearings and investigate under current rules.
2.They could also create investigative Commissions similar to what the White House can create, only the Commission would report to Congress.
3. They could create a joint committee specifically established to look into these abuses.
All of the Congressional options would require complete cooperation of the White House to be effective. And while the President might go along with some investigations, he has made it clear that he wants no prosecutions whatsoever of the CIA.
He might bend on that and allow it, but without his approval of the investigations by Congress there would be little that the Congress could effectively do. And this presents the specter of pitting a Congress against the President that the President needs to be behind him on other urgent matters; and of causing attention to be drawn to the fight between the two branches of government rather than to the subject of the investigations.
Conclusion and appeal for discussion
Whatever method is chosen it seems to me that it is imperative that we insist on transparency as to the progress of the investigations. By definition investigations and transparency are at odds. So I am not saying that the results of sensitive investigations be released before they are analyzed, but that real, clear and open progress reports be made public so that the whole issue does not get buried by "investigating the problem" for several years.
How about you? What would be the way you would go about this, and why? Let's have a civil and educational discussion of this, similar to the ones we have had on my last two posts on this subject.
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