Getting To The Bottom Of Bush Regime Perfidy-- H.R. 104

Congressional Dems need more fighters like John Conyers

In looking into why speakers bureau executives feel that Bush, unlike other past presidents, would be worth very little on the open market, we came across a long list of Bush misspeaks. There's one I haven't been able to get out of my mind since he first uttered it on May 12th of last year: "I'll be long gone before some smart person ever figures out what happened inside this Oval Office."

Yesterday Jacob Weisberg addressed that question over at Slate: The Enigma In Chief-- We Still Don't Know How Or Why Bush Made The Key Decisions Of His Administration. Weisberg points to his decision to invade Iraq, his framing of a global war on terrorism and the financial and economic policies he put in place that led directly to the massive financial crisis the country, actually the world, is dealing with. Bush, Cheney and Rove claim history will judge Bush/them more kindly than contemporary critics. Impossible?

We do not know how people will one day view this presidency because we, Bush's contemporaries, don't yet understand it ourselves. The Bush administration has had startling success in one area-- namely keeping its inner workings secret. Intensely loyal, contemptuous of the press, and overwhelmingly hostile to any form of public disclosure, the Bushies did a remarkable job at keeping their doings hidden for eight years.

Probably the biggest question Bush leaves behind is about the most consequential choice of his presidency: his decision to invade Iraq. When did the president make up his mind to go to war against Saddam Hussein? What were his real reasons? What roles did various figures around him-- Dick Cheney, Donald Rumsfeld, and Condoleezza Rice-- play in the actual decision? Was the selling of the war on the basis of WMD evidence a matter of conscious deception or of self-deception on their part?

And it isn't only Weisberg and other journalists who are eager to get to the bottom of things. You may not have heard of H.R. 104 yet. The Chairman of the House Judiciary Committee, Rep. John Conyers (D-MI) introduced it last week, and it immediately garnered 10 co-sponsors, Tammy Baldwin (D-WI), Rick Boucher (D-VA), Steve Cohen (D-TN), Bill Delahunt (D-MA), Luis Gutierrez (D-IL), Sheila Jackson-Lee (D-TX), Hank Johnson (D-GA), Jerrod Nadler (D-NY), Bobby Scott (D-VA), and Debbie Wasserman Schultz (D-FL). The bill would establish a national commission on presidential war powers and civil liberties. One intent would be to get to the bottom of some of the questions posed by Weisberg and others who don't think the best way to insure against more Bush-Cheney-like behavior is to give them a pat on the back and wish them well.

Obama very much wants to let bygones be bygones and move along with his own agenda. He's not appointing a special prosecutor to look into the myriad crimes committed by the Bush Regime. Presidents always have a vested interest in moving on and it should surprise no one that Obama would rather sweep 8 years of Bush Regime crime under the carpet and move on with his own programs. If the former regimistas are charged with crimes, that will dominate all political debate and the mass media. His line on predictable line on Bush (from his appearance this morning on This Week with George Stephanopoulos): "[W]e need to look forward as opposed to looking backwards.” Yesterday Dalia Lithwick presented a different perspective in a very powerful NY Times OpEd:

Those who say that there should be no investigation or prosecution of senior officials who authorized torture and warrant-less surveillance rarely even bother offering legal justifications. They argue that the Obama administration has more urgent problems to contend with. They insist that any such process would devolve into partisan backbiting from which this country could never recover. And they insist, as did Attorney General Michael Mukasey in early December, that there is no basis on which to prosecute the architects of torture and wiretapping policies because each was acting to “protect the security in the country and in the belief that he or she was doing something lawful.”

Others-- including unnamed officials on the Obama transition team-- have already claimed that there is simply no political will for criminal prosecutions, or even a truth commission.

...Nobody is looking for a series of public floggings. The blueprints for government accountability look nothing like witch hunts. They look like legal processes that have served us for centuries. And, as the Armed Services Committee report makes clear, we already know an enormous amount about what happened to take us down the road to torture and eavesdropping. The military has commissioned at least three investigative reports about the descent into abusive interrogation. Michael Ratner, the president of the Center for Constitutional Rights, has compiled what he believes to be sufficient evidence to try senior Bush administration officials for war crimes. More previously secret memos from the Office of Legal Counsel were released just last week.

Nevertheless, it’s clear that the first step will be a thorough determination of what has occurred. To that end, this week the House Judiciary Committee chairman, John Conyers Jr., introduced legislation for a panel to investigate the “broad range” of policies pursued by the Bush administration. Such a commission would not constitute a criminal investigation, but it would not preclude one either.

Some commentators have suggested that any such truth commission should promise immunity or a pardon in exchange for truthful testimony, but I believe that if it becomes clear that laws were broken, or that war crimes were committed, a special prosecutor should be appointed to investigate further. The Bush administration made its worst errors in judgment when it determined that the laws simply don’t apply to certain people. If we declare presumptively that there can be no justice for high-level government officials who acted illegally then we exhibit the same contempt for the rule of law.

It’s not a witch hunt simply because political actors are under investigation. The process of investigating and prosecuting crimes makes up the bricks and mortar of our prosecutorial system. We don’t immunize drug dealers, pickpockets or car thieves because holding them to account is uncomfortable, difficult or divisive. We don’t protest that “it’s all behind us now” when a bank robber is brought to trial.

And America tends to survive the ugliness of public reckonings, from Nixon to Whitewater to the impeachment hearings, because for all our cheerful optimism, Americans fundamentally understand that nobody should be above the law. As the chief prosecutor for the United States at the Nuremberg trials, Robert Jackson, warned: “Law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power.”

The determination-- and even viciousness-- with which the most partisan of the GOP Senate caucus is attacking Obama's Attorney General designee, Eric Holder, is to serve notice that they will broker no investigations into the Bush Regime under any circumstances. Miss McConnell has served notice that they will virtually rubber stamp the rest of the nominees and that it is Holder's scalp they will go after.

It's mostly all going to be a big show, and primarily to discredit Holder and sow distrust of him with the public-- just in case he tries to do anything to pursue the kind of crime they live to protect. But because Reid seriously bungled the seating of Roland Burris (D-IL) and Al Franken (D-MN), Democrats may actually need a Republican vote on the Judiciary Committee to win approval for Holder. And Holder isn't the only Obama legal beagle the far right extremists are trying to discredit in advance. They're even more frightened of Dawn Johnsen, who Obama picked to run the Justice Department's Office of Legal Counsel, which interprets the law for the entire executive branch. It isn't difficult to see why the fear her.

Ms. Johnsen accuses Mr. Yoo of "seeking maximum flexibility -- that is, the ability to use the most extreme methods possible without risking criminal liability -- in interrogations of suspected al Qaeda operatives." She means this as a condemnation. But this in fact is the OLC's job -- to explore the legal boundaries of vague statutes and treaties to define where lawful interrogation ends and torture begins. You can debate that Mr. Yoo went too far, as Mr. Goldsmith later did when the Bush Administration withdrew the opinion. But Mr. Yoo was acting in good faith in response to the CIA's request for legal clarity, while leaving the policy choices to the war fighters.

And that's where Ms. Johnsen's premises are most dangerous. "In considering whether a proposed action is lawful," she writes, "the proper OLC inquiry is not simply whether the executive branch can get away with it," in the sense of writing opinions that can "withstand judicial review." She sees the OLC staff not as legal technicians working on behalf of the President but as a policy outfit free to quash Presidential actions with which it happens to disagree.