Investigating Bush: the political consequences


Could a move to investigate possible criminal wrongdoing by the Bush administration alienate Republicans and kill any hope for bipartisan cooperation in Congress? Why shouldn’t Congress let internal federal investigations run their course and pressure the Obama administration to make the findings public?

Will Republicans feel alienated? That’s up to them
Point: Frederick A.O. Schwarz Jr.

The independent commission that I and others have proposed would be nonpartisan in all respects. First, the criteria for membership would expressly include a demonstrated history of impartiality, integrity and the ability to work across party lines. Given the current partisan divide in Congress, that is one major advantage to pursuing an independent commission rather than creating a select committee within Congress. (Another advantage would be freeing up members of Congress to focus on the immediate economic crisis.)


Second, the inquiry would focus on actions by government actors from both parties. The commission would be remiss if it did not examine whether any unlawful policies -- such as extraordinary rendition -- pre-dated the Bush administration or have continued into the Obama administration. It also should examine the systemic problems and root causes that allowed unlawful conduct to become policy. Some of these underlying problems -- such as excessive government secrecy and lax congressional oversight -- clearly existed well before President Bush took office. (The need to examine Congress’ role in allowing these policies to go forward is yet another reason to pursue an independent commission rather than a congressional inquiry).

Third, and perhaps most important, the need for the commission is triggered by evidence that government policies violated the law. The rule of law is not a partisan issue; it is a founding principle of our democracy. Some of the proudest moments in our nation’s history have been instances in which politicians placed the rule of law over partisan allegiances, and some of the most shameful moments have been instances in which the opposite took place. The commission also would examine whether policies departed from our nation’s fundamental shared values -- and yes, there are some values that are so important to our identity as a nation (“we do not torture,” for example) that they are held across the political spectrum.

Is it possible that establishing the commission might nonetheless “alienate” Republicans in Congress because of their party loyalty to the Bush administration? Possibly; but that reaction is equally likely to occur whether the inquiry is conducted by an independent commission, Congress itself or the Obama administration, and it appears certain that at least one of these avenues will be pursued. As to whether this will make Republicans less likely to work with Democrats in Congress, one would hope that Republicans would not penalize their constituents by refusing to cooperate on issues of vital public importance. But whatever congressional Republicans’ response may be, the issues at stake are too important to shy away from an inquiry out of fear that some politicians might elevate partisan allegiance over the rule of law, or that they are so entrenched in the partisan mind-set that they cannot even recognize when the rule of law is at stake.

It may be tempting to try to avoid a political “showdown” by just letting existing internal inquiries run their course. That would be a mistake. The few inquiries underway are taking place on an agency-by-agency, issue-by-issue basis. This approach has several problems: It is much harder to get a “big picture” of the relevant policies, some of which were developed and implemented across agencies; certain key agencies are not conducting investigations or are only addressing very narrow issues; and there are crucial executive entities -- including the office of the vice president and the National Security Council -- that are not considered “agencies” at all and do not fall within any of the existing investigations. Furthermore, internal agency investigations are subject to certain limitations, including the inability to compel testimony (a significant problem when seeking information from former government officials) and resource constraints.

Establishing a commission to conduct an unflinching review of counter-terrorism policies will pose some practical difficulties and political headaches, to be sure. In the short run, it would be much easier and cheaper to adopt your approach, Jeremy, and just dismiss any transgressions that took place as old news. But in the long run, that would be doing a tremendous disservice to our democracy and the rule of law. It also would badly serve the people of this country, as we cannot develop effective counter-terrorism strategies in ignorance of the past policies and their consequences.

There is indeed momentum behind the call for accountability in general and the commission proposal in particular. A recent Gallup poll showed that two-thirds of Americans favor an investigation into counter-terrorism abuses, and the number of people who have signed Sen. Patrick J. Leahy’s petition in support of a commission is fast approaching 100,000. And if you’re wondering about media interest, well, you might want to check out this week’s Dust-Up.


Frederick A.O. Schwarz Jr. is chief counsel at the Brennan Center for Justice at New York University School of Law. Elizabeth Goitein, the director of the Brennan Center’s Liberty and National Security Project, contributed to this post.

A ‘gotcha’ game for Bush haters
Counterpoint: Jeremy A. Rabkin

I still don’t see that there’s any need for a truth commission. When pressed to explain what you’re talking about, Frederick, you say there is “evidence that government policy violated the law.” That doesn’t knock me over.

The one specific example you offer -- and in passing -- is “torture.” Yes, most Americans are opposed to torture. For the record, I am too. Now is waterboarding torture? I’m not sure.

Over the last few decades, we have openly and publicly subjected thousands of American military personnel to waterboarding as part of their training. That doesn’t prove it shouldn’t be called torture. But surely we would never impose on our own troops the sorts of things that most people think of as torture.

Do they torture people in Saudi Arabia? They amputate hands and feet as a punishment, so they are not squeamish. Nonetheless, the Obama administration has just announced that it will send some Guantanamo Bay detainees to Saudi Arabia. Presumably, the Saudis have promised not to torture these individuals. But the Bush administration had similar promises when it sent suspects to other countries. Critics say this was “unlawful” because the promises in those cases couldn’t be relied on.


Back in 1942, President Franklin Roosevelt placed more than 100,000 Japanese Americans in detention camps without charging them with any crime. Was that lawful? Well, in fact, the Supreme Court said in 1944 that it was, because special wartime circumstances might justify actions which would be clearly unconstitutional at other times. Not many scholars applaud that decision today, but it was made in wartime.

My point is not that bad things happened before the Bush administration. My point is that there is great uncertainty about what is and what isn’t lawful when it comes to wartime security measures. The Supreme Court has now heard three cases on Guantanamo Bay detainees. In every one of these cases, there were sharp disagreements among the justices, and majorities prevailed by only one vote (and with different majorities prevailing on the various questions presented).

I believe the Bush administration acted in good faith based on its best understanding of what was proper in the circumstances it faced. You don’t say otherwise, Frederick, but you seem to think the fact that some Bush administration decisions might properly be questioned by a new administration -- or some have been ruled improper in subsequent litigation -- indicates there has been some scandalous misconduct that can only be set right with a truth commission.

This is not a contribution to national security. I don’t even think it’s a contribution to civil liberties. It just sounds like a “gotcha” game that only obsessive Bush haters will want to play.

Jeremy A. Rabkin is a law professor at George Mason University.