Investigating Bush's Crimes
by Scott Horton February 18, 2009
When the Obama transition team opened a questions referendum on its popular change.gov website in December, one issue quickly soared to the top. "Will you appoint a Special Prosecutor (ideally Patrick Fitzgerald) to independently investigate the gravest crimes of the Bush Administration, including torture and warrantless wiretapping?" And when Obama stepped to the microphone at his first presidential press conference, the question came again, this time with reference to a Congressional call for a truth commission. Obama's response: "My view is also that nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen; but that generally speaking, I'm more interested in looking forward than I am in looking backwards." The answer was a slight variation on the theme he has struck consistently since the final days of his campaign. But what does it mean with respect to the criminal accountability of Bush-era policy-makers? Many are inclined to hear confirmation of their hopes--Republicans eager to see the disastrous Bush years passed over without more fuss will stress the intention not to "look back," while Obama supporters who embraced his strong criticism of Bush's torture and surveillance policies will emphasize his observation that "nobody is above the law." Others are displeased with the ambiguity and press for a conclusive decision on the question.
But these exchanges give us the essence of the "no drama Obama" style: he builds support with lofty rhetoric, giving some sense of his policy objectives, but he consciously avoids committing himself to any particular resolution. Obama is not being coy, I think. He means precisely what he says. Accountability is not a part of his affirmative agenda, least of all for his first hundred days, on which the long-term success or failure of his presidential term may hang. An economic stimulus package, healthcare initiatives and a series of foreign policy challenges occupy center stage. Even in the Justice Department, Obama's first objectives involve restoring the institution's self-confidence and resurrecting its historical role in civil rights and voting rights enforcement. It's not that Obama and his senior advisers see the accountability issue as inherently unimportant--on the contrary, they readily admit that it may be the key to long-term resolution of a series of questions surrounding the abusive extension of presidential power. But it is clearly a back-burner issue for them, something better addressed near the end of his first term or, better still, during a second term.
Obama's problem is that a growing number of Americans are concerned about what the Bush administration did and are eager to press the issue. The extent of public concern has been reflected in several recent public opinion polls, including one in February by USA Today showing that nearly two-thirds of Americans support investigations of the Bush administration's use of torture and warrantless wiretapping; roughly 40 percent support criminal investigations.
And the shift in public opinion is not the only thing transforming the environment in Washington on this issue. Susan Crawford, a Cheney protégée and the senior Bush administration official responsible for the military commissions in Guantánamo, told the Washington Post's Bob Woodward that she refused to approve the charges against Mohammed al-Qahtani because he had been tortured. Torture is, of course, a felony under US law, and if multiple figures are involved, it might well be "conspiracy to torture," a separate crime. As ABC News reported and President Bush later confirmed, the full book of proposed techniques to which Qahtani was subjected had been approved by the National Security Council, headed by Bush. A senior Obama Justice figure remarked after reading the Crawford interview that it would be "impossible to sweep the matter under the carpet." That's a view that seems to be shared by US allies and United Nations officials, who, pointing to Crawford's admissions, are asking why the United States has failed to introduce a criminal inquiry into how torture came to be practiced as a matter of US policy. Articles 4 and 5 of the Convention Against Torture require the United States to prohibit torture under domestic criminal law and to investigate and prosecute incidents in which it is practiced. The failure even to begin criminal investigations has placed the United States in breach of its obligations under the treaty, a point that even torture apologists like University of Chicago Law School professor Eric Posner freely concede.
President Bush was widely expected to issue blanket pardons to those involved in his interrogations and surveillance programs, but he did not do so. Moreover, the Bush administration's tenuous claim to legality for its torture programs was ended immediately after Obama assumed office, when he directed a reassessment of interrogation policies and revoked all of the relevant Bush-era Justice Department opinions with the stroke of a pen.
Obama has been careful to avoid any suggestion that he or his senior officers are directing a criminal investigation or prosecution of the Bush-era torture enablers. He is right to do so. The criminal justice system of a democratic state should not operate like a well-oiled military machine taking its cue from the commander in chief. It requires professional prosecutors who operate with critical detachment from political officials when they pursue criminal investigations. Moreover, the painful circumstances of the torture and surveillance programs, particularly the fact that senior Justice Department officials were complicit in their implementation at almost every step, make it an ethically doubtful proposition for the Justice Department even to take up the matter.Up to this point, political influence has been used to block accountability. Investigations are still under way at the Justice Department and other agencies that touch on important aspects of the Bush administration's detainee policy. One probe is looking into the mysterious destruction of evidence of interrogations using highly coercive techniques that was sought in pending criminal cases. Another probe, nearly complete, is examining the circumstances behind the crafting of the notorious torture memos in the black hole of the Bush Justice Department, the Office of Legal Counsel. Under the Bush administration, these and other investigations were often bottled up, as senior officials refused to cooperate and the White House--which functioned as the nerve center for Justice Department political operations--refused to turn over documents. On occasion, they were shut down directly by order of President Bush. One criminal investigation launched by FBI agents at Guantánamo was ordered closed by the head of the Justice Department's criminal division, Alice Fisher, who may herself emerge as a target of a criminal investigation. Under the transparency policies Obama announced during his first week, and under the detainee policies he is busily putting in place, the administration will unblock internal probes and mandate that federal employees, including White House employees, cooperate with them. Realization that this was in the works may have given rise to President Bush's January 16 "gag letters" issued to Karl Rove, Harriet Miers and Joshua Bolten, instructing them to keep quiet in the face of a Congressional probe about their dealings with the Justice Department.
Leading Congressional Democrats are proposing a way forward. In January House Judiciary Committee chair John Conyers announced a blue-ribbon panel to be appointed to conduct an investigation. He is also proposing that the statute of limitations be modified to take the time pressure off potential criminal investigators. Senate Judiciary Committee chair Patrick Leahy put forth a proposal of his own a few weeks later in a presentation at Georgetown University. Leahy pressed the idea of a "truth commission," similar to the approach used in South Africa after the fall of the apartheid regime. Bush administration officials who come forward and offer a full accounting of their deeds could get immunity for their testimony; those who keep silent or give false statements could face prosecution. The Leahy and Conyers approaches share a number of elements, including the notion that the commission would consist of eminent people who are "above the political fray," would get subpoena power and would be fully staffed and resourced. Both Conyers and Leahy cite the 9/11 Commission as a model--a Congressionally authorized commission backed by presidential authority, a hybrid model that would eliminate some of the potential legal challenges that a purely Congressional commission might face. Conyers is, however, far more concerned about building a solid record that can form the basis of prosecutions, whereas Leahy offers immunity as a reward for candor.
There are unmistakable signs of momentum in support of a commission approach in Washington. Nancy Pelosi and other Democratic Congressional leaders who once sang in the "let's forgive and forget" choir are now signaling their support for a commission. But what about the Obama White House? Following a meeting between Leahy and Greg Craig, Obama's White House counsel, the White House was committed only to an ongoing discussion.
But the commission approach may, depending on some critical details, offer the best solution to the impasse. Moreover, it may well suit Obama's needs for the commission to be the creation and initiative of Congress rather than of his administration. It would allow a comprehensive investigation without embroiling the White House in the process. A commission would be in a position to put to rest some persistent questions, particularly regarding how torture came to be embraced as a matter of policy and whether the administration ever got actionable intelligence from tortured suspects that could conceivably offset the immense damage that torture has done to the moral authority of the United States around the world. Most significant, if a commission recommended a criminal investigation to the Attorney General, and if it recommended appointment of a special prosecutor, that would deflect suggestions that the process was "political."
On the other hand, investigative commissions do not actually do justice. They cannot bring charges, and in the process of granting immunity for testimony they can muddy the waters for a later prosecutor. Any commission would need the advice and guidance of professional prosecutors, who could help to assure that it would prudently exercise the right to grant immunity and would avoid damaging future prosecutions.
Criminal investigations and prosecutions might be avoided under the Leahy approach and might be delayed under the Conyers approach. But whatever approach is finally settled upon, it seems increasingly clear that there will be multiple investigations: a commission of some sort, Congressional hearings (which are promised in any event) and internal probes within the government, which will likely be pursued delicately and quietly.
Though the wheels of justice grind slowly, they grind exceeding small. One year from today, it is likely that a large number of the secret documents that form the backbone of Bush detention policy will be public and many of their authors will have been publicly interrogated about them. We will have a better sense of how torture crept into the American interrogations system and whose authority was invoked to ram it through in the face of legal hurdles once thought insurmountable. And one year from today, we will probably still be asking whether any of the authors of this national tragedy will or should be prosecuted. That outcome is not likely to satisfy either side of the debate. But it may well be consistent with the interests of justice, which demands a complete exploration of the facts before anyone is held to account. That outcome fully reflects the Obama style.