The Case for Prosecuting Bush Officials

By Daphne Eviatar |

The Senate Judiciary Committee’s “Getting to the Truth Through a Nonpartisan Commission of Inquiry” convened this morning to consider Sen. Patrick Leahy’s (D-Vt.) proposal for a sort of “truth and reconciliation” commission.

The hearing was full of all the predictable, lofty statements from illustrious supporters about why a commission would further the American people’s understanding of our nation’s past and true values, and also demonstrate to the world our commitment to truth and justice — most of which I agree with. But what was most surprising was that the Senate Republicans and their witnesses, in the process of ripping apart the idea, made the strongest case I’ve heard yet for why the Department of Justice should prosecute former senior officials of the Bush administration.

Sen. Arlen Specter, the ranking committee Republican, after noting his previous support for judicial review of the Bush administration’s terrorist surveillance program, referred to the recent disclosures of Office of Legal Counsel memos as potentially supporting the case for prosecutions.

“You’ve had some rather startling disclosures, with the publicity in recent days about unusual—to put it mildly—legal opinions” to justify broad executive actions, including homicide. “They’re all being exposed now,” he said, and noted that a forthcoming report from the Office of Professional Responsibility in the Justice Department will likely expose even more.  They’re “starting to tread on what may disclose criminal conduct,” he said.

Rather than going off  “helter-skelter” and conducting a “fishing expedition,” said Specter, “it seems to me that we ought to follow a regular order here … If there’s reason to believe that these justice department officials have given approval for things that they know not to be lawful and sound, go after them.”

The witnesses called to present the Republican opposition to Leahy’s proposal made the same point.

David Rivkin, a former Justice Department official in the Reagan and first Bush administrations and now a partner at the law firm Baker & Hostetler, said a truth commission “is a profoundly bad idea, a dangerous idea, both for policy and for me as a lawyer for legal and constitutional reasons.”

Objecting that Congress would be improperly delegating its oversight power, and that witnesses would be called out for criminal conduct without the right to defend themselves in a trial, he said: “this is to establish a body to engage in what in essence is a criminal investigation of former Bush administration officials,” and that “the subject matter areas, which such a commission would investigate – among them the interrogation and handling of captured enemy combatants and the gathering of electronic intelligence – are heavily regulated by comprehensive criminal statutes, and ensures that the commission’s activities would inevitably invade areas traditionally the responsibility of the Department of Justice.”

Jeremy Rabkin, a law professor at George Mason University who also opposes Leahy’s idea, similarly insisted that in the United States, where we have a fully developed legal system, prosecutions — not truth commissions — are the appropriate course.  A truth commission is something that countries like South Africa and Chile have had, not something we should do here, he said. “In those countries they had to have commissions because they couldn’t have prosecutions. Peace was really in doubt in those countries … they had to trade off prosecutions for peace. We’re not in that situation. If people think we need to have prosecutions, we should have prosecutions.”

Proponents of the truth commission idea, meanwhile, while not ruling out the idea of prosecutions, saw a truth commission as serving a different, and broader, purpose. But it was surprising that, at a hearing cautiously called to discuss “a nonpartisan commission of inquiry,” we heard the strongest case yet  for the prosecution of former Bush administration officials — being made by Republicans.

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