Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Let me hereby add my harmonic voice to the burgeoning chorus of lawyers, politicians, professors and pundits who believe that President Barack Obama's Justice Department should not even attempt to prosecute Bush Administration officials who authorized the use of torture against terror detainees. Even if such prosecutions are legally tenable - and I doubt they are - the spectacle of public trials over anti-terror measures would split asunder the unity that Team Obama has tried to foster since his election to the White House.
Instead, as many terror-law geeks already have suggested, Washington's new leaders ought to spend whatever political capital they have in this area on the formation and endorsement of a blue-ribbon commission, similar to the vaunted 9/11 Commission, that would investigate all aspects of the Bush administration's torture policies. At a minimum, the American people deserve a full accounting of how it came to pass that so many leaders (elected and unelected) approved and implemented such practices in our name and on our behalf. Call it the "National Commission on Torture Policies."
Indeed, the very act of chartering such a commission, and ensuring that it is fair and thorough, would send a productive message to the world (so much of it disappointed in the loss of our moral standing caused by Abu Ghraib and other torture-related scandals.). That message would be this: Even when we make grievous mistakes in judgment, we, as a people and a nation, have the self awareness and confidence in our own institutions, to shine a public light on those failures in order to help ensure that they do not occur again. In my view, there is no excuse for the machinations which led us to waterboard people. But a frank explanation sure would be helpful.
So how to do it? Well, first, the White House has to find courageous, bright, dogged people to head up the Torture Commission. A few years ago, Thomas H. Kean and Lee H. Hamilton, two lions of governance and integrity, chaired the 9/11 Commission, the final report of which was called by the Brookings Institution "an invaluable, detailed and authoritative history." Why not, then, bring those two men back and allow them to chair the new commission?
They already are experts in our government's response to September 11, 2001. They already know how to investigate well without jeopardizing national security. They know how to deal with classified information. They'd be perfect stars in a sequel. But they would need help. Former senator John Warner (R-Va.), head of the Armed Services Committee for so many years, also should be asked to serve. What a valuable institutional voice he would be. Bob Kerrey, another veteran of the 9/11 Commission, also should be invited back and maybe someone should call Gary Hart, who wrote about terrorism long before it was "popular" to do so.
The nation also would be served by inviting non-governmental experts to help in the effort to undercover the layers of deceit that marked our trail into torture. How about Georgetown Law Professor David Cole, one of academia's leading voices in describing the legal impact on the war on terror. He's been a strident critic of the current administration's legal decisions - but this shouldn't discount him. Ruth Wedgwood, currently a law professor at Johns Hopkins University, and Scott Silliman, an expert in military law at Duke, also would be good choices to serve. They are each brilliant and level-headed.
But we can't just populate the panel with eggheads. Any commission on torture is going to need a dogged investigate arm - led by someone who isn't afraid of powerful people. That's why President Obama should ask Patrick J. Fitzgerald, currently the U.S. Attorney in Illinois, to serve on the panel as its lead investigator. Fitzgerald, who went after I. Lewis "Scooter" Libby in the CIA Leak Case won't be afraid to go after Dick Cheney and John Yoo and David Addington. Perhaps it is also time to call to public service journalists Jane Meyer and Benjamin Wittes, who also know more than most about justice in a time of terror. They would help shed light where darkness now lies.
To do it right, to give the new commission the best chance to succeed, the White House will have to make some compromises. For example, the Justice Department should grant full legal immunity (except for perjury) to any and all government witnesses who are called testify. This guarantees that there will be no future torture prosecutions. But it also guarantees that we all will know more about what happened and why. To me, this honesty and transparency is more valuable than some pyrrhic court battle that would last for years without any assurance of success. Sometimes those who deserve punishment evade it. That's just life.
Without such immunity, Yoo and Addington and Cheney and Gonzales and all the other architects and builders of the road to Abu Ghraib would be able to remain mute. With it they would be forced under threat of contempt sanctions to swear under oath and then testify truthfully. And to help ensure that these former officials and others speak fully and candidly, the White House also should be prepared to waive "executive privilege" to the extent that it is raised by the men and women who technically legalized such odious work. If these officials still don't talk, or if they commit perjury, the federal courts will not look kindly upon them.
It's time for us to face our mistakes; to air our dirty laundry on torture, and to come up with recommendations so we can avoid this down the road. That won't happen in a criminal case against Alberto Gonzales or Dick Cheney (who's proudly admitted his role in approving harsh interrogation methods). It will happen when Democrats and Republicans together search for answers the way they did in formulating the 9/11 Commission Report. And, not for nothing, if anyone on the panel needs an over-experienced but diligent clerk, well, count me in.
By Andrew Cohen
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