MARCH 5, 2009
Republicans rolled out their arguments against a “Truth Commission” to investigate Bush-era interrogation and detention issues at a Senate Judiciary Committee hearing today. They’re pretty predictable.
Sen. Arlen Specter, R-Pa., insists the Justice Department can handle the job of investigating Bush-era abuses — ignoring the fact that, so far, the Obama administration hasn’t seemed anxious for the job, and taking his prerogatives as a senator unusually lightly. Specter also worried a truth commission would become a “fishing expedition.” Sen. John Cornyn insisted Congress has already investigated all these allegations and a commission would be “an indictment of congressional oversight responsibilities.” Yes, Sen. Cornyn, it would be.
Reagan-era Justice Department official David Rivkin insisted a commission amounted to “outsourcing” law-enforcement responsibilities to political appointees. I later debated Rivkin on “Hardball,” and I pointed out that the commission is envisioned as a fact-finding enterprise, not as a law-enforcement endeavor, but he dismissed me with something along the lines of “if it walks like a duck …” That’s a point of law I’m not familiar with, not being a lawyer myself.
Rivkin is an interesting figure: He’s never met a Bush power grab or anti-terror policy he couldn’t defend. As Glenn Greenwald recently wrote, Rivkin has consistently opposed international efforts to prosecute Americans for war crimes like the International Criminal Court, or an Italian court’s decision to indict CIA agents who kidnapped a Muslim cleric in Milan and rendered him to Egypt. He has insisted only U.S. officials can prosecute such abuses, but he’s lobbied against such prosecution. “Obama and the Democratic Congress are entitled to revise and reject any or all of the Bush administration’s policies,” he wrote recently in the Washington Post. “But no one is entitled to hound political opponents with criminal prosecution, whether directly or through the device of a commission, and those who support such efforts now may someday regret the precedent it sets.”
So according to Rivkin, other countries can’t prosecute such abuses, only we can. But we shouldn’t. Got it.
He made much the same point in his testimony today: At today’s hearing, Rivkin opposed any kind of investigation or prosecution: “Attempting to prosecute your political opponents at home, or facilitating their prosecution abroad, is like pouring acid on the machinery of democracy,” he told the Leahy hearing. But later, on “Hardball,” he made a little news, because he said he would prefer a Justice Department investigation and prosecution, if warranted, of Bush administration abuses, rather than a private citizens or congressional investigation.
“I have nothing against a preliminary investigation driven by career investigators in the Justice Department,” he told me and Chris Matthews. “If career people decide to prosecute, it’s regrettable, but I see no moral problem with that.” I would likewise prefer a criminal investigation and prosecution to a truth commission, but I’m not sure they’re mutually exclusive — and I’m not sure the Obama Justice Department has the stomach to lead with a prosecutorial approach.
Two-thirds of the American people want to see some kind of investigation (a plurality prefer a criminal probe to a mere fact-finding commission). The Democrats can’t get away with doing nothing after this lawless eight years. They can’t let stand Bush officials’ claims to be above the law. That conception of the absolute power of the presidency to violate human rights and break the law was rejected last November. I think Leahy is looking to start with what he can get. We’ll see how far this crusade goes.
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