Feds Need Torture Commission Now

Attorney General Eric Holder interviewed by Katie Couric from the Justice Department. CBS

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

Like the good politician that he is, Attorney General Eric Holder last week evaded a point-blank question about the advisability of a "Truth and Reconciliation Commission" that would broadly investigate America's descent into torture both as a technique and as a policy in the war on terrorism. Even in the immediate wake of a shockingly-detailed Red Cross report on America's post-Sept. 11 torture practices, Holder deftly tossed the potato not to his boss in the White House, but to the Chairman of the Senate Judiciary Committee, Patrick Leahy (D-Vt.).

Sen. Leahy is famously on the record as favoring such a commission - but only if the Republicans play along. Leahy blames the GOP for labeling any sort of official review of our torture policies as a post-hoc witch hunt. But he also blames human rights organizations for pushing too loudly for criminal charges for former officials. And therein lays the genius of a blue-ribbon, bipartisan panel on torture policy; it's the most reasonable compromise offering the best possible outcome for the most people on the still-contentious political, legal, moral and ethical issue of why we tortured before - and whether we should again.

Despite a slew of recent coverage summarizing the damming Red Cross report, the notion of prosecuting the men who engaged in torture, or the lawyers and bureaucrats who blithely authorized them, still has little legal or political traction here in the United States. Like it or not, American law virtually guarantees the failure of a torture case against, say, former White House counsel. But in Poland and the United Kingdom, officials reportedly have begun criminal investigations into the past conduct of U.S. officials. And a Spanish magistrate may be ready even as early as this week to indict on torture charges former U.S officials like Alberto Gonzales and Jay Bybee.

The White House and the Congress shouldn't allow zealous foreign prosecutors, domestic inertia or restrictive legal precedent to determine how the torture debate evolves. It's not enough to declare again, as the Administration did on Friday, an official end to the use of "secret prisons" all over the world. It's not enough to say we will no longer torture or contract out torture to private contractors. We must fully understand why and how we sanctioned torture, and why and how it did or did not ultimately work, so that we may react properly and decisively the next time the question of torture flares up as an option in fight to protect Americans from terrorism.

No foreign prosecution is going to accomplish that goal. And no domestic prosecution is going to get anywhere close enough to trial to make a difference. President Obama and Congress should do the right thing right now and set up a bipartisan blue-ribbon panel - like the well-conceived and brilliantly-executed 9/11 Commission. If the Bush Administration itself could accede to a contemporaneous study of its own negligence and incompetence in the lead-up to Sept. 11, and then ensure such a worthy report as we got from the 9/11 Commissioners, then surely the Obama Administration could and should accede to a fair look-back on torture.

Indeed, the current Justice Department has taken several concrete steps toward illuminating the rest of us on some of the Bush-era decisions surrounding the war on terror. We now know, for example, that some Bush officials early on in the fight contemplated drastic restrictions upon our First Amendment and Fourth Amendment rights. We are anticipating the release of more of those legal "memos" that offered justification and rationale for the ugly practices that have done so much damage to our reputation and which may, in the end, have been far less successful than initially claimed.

Taking this concept one step further, the White House and Justice Department must ensure the value of a torture commission by granting use immunity to (and the concomitant power of contempt over) all officials, in and out of government now, who would need to be questioned by members and investigators. Such a bold stroke would break the legal gridlock that has muted Holder and Company, give powerful political momentum to commission advocates like Leahy, and offer President Obama another opportunity to demonstrate the "post-partisanship" for which he wants to be famous. Combine this immunity with a diplomatic initiative to stop those overseas investigations and you've got yourself a winning quinella. Don't wait. Do it now.

Advocates on the left cringe when they hear the "I-word" - to them it smacks of capitulation, another example of government protecting itself from its own misconduct. But what, realistically, do human rights advocates believe is going to happen otherwise? What's better - years of pre-trial hearings and appeals in a vain effort to bring John Yoo before a jury? Or hauling him in as early as this year, under penalty of perjury, before an inquisitive panel of experts? What's worse? Hearing Vice President Dick Cheney use torture as a political issue with his dire (but cynically unspecific) warnings about how we are weaker now that we don't degrade prisoners? Or a nationally-respected panel that has access to classified information, subpoena power, and near-universal heft?

Three months ago, I laid out the argument in favor of a commission (and against criminal trials for former Bush officials). Intervening events only make both of those cases stronger. We shouldn't spend five years trying to restrict the scope of governmental immunity. We shouldn't spend the time roiling in litigation against defendants that we almost surely can't win. We should instead spend our energy on getting to the truth of the matter. Author and torture-law expert Mark Danner, a brilliant scholar on the topic, easily said this best. In the most recent issue of the New York Review of Books, he wrote:

The issue [of torture] could not be more important, for it cuts
to the basic question of who we are as Americans,
and whether our laws and ideals truly guide us in our
actions or serve, instead, as a kind of national decoration
to be discarded in times of danger. The only way to
confront the political power of the issue, and prevent
the reappearance of the practice itself, is to take a hard look
at the true 'empirical evidence of the last five years, hard years'
and speak out, clearly and credibly, about what this story really
tells.

  • Andrew Cohen

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