The Mixed Up Files of G.W. Bush
In the spirit of the impending holiday, let me start off by saying many thanks to TPM for the opportunity to kick around the question of how to investigate and reckon with the full Bush legacy in the company of people who are much better-schooled in this area than I am. Scott Horton of Harper's--who, unlike me, actually knows something about the law--has a great piece on the subject out this month (Harper's hasn't put it online for non-subscribers, but if you have superhuman vision maybe you can read the tiny thumbnails here). Anne Weismann of Citizens for Responsibility and Ethics in Washington is actually involved in some of the legal actions we'll be discussing here. Rep. Mickey Edwards, Kate Martin and Daniel Larison all come at these questions from usefully different angles, and it also goes without saying that TPM itself has been instrumental in advancing our awareness of the
administration's wrongdoing.
It's safe to say that most people who hang around this site are aware that George Bush and Dick Cheney will leave office with a staggering volume of unanswered questions in their wake. Answering them is of great importance for a lot of obvious and not-so-obvious reasons, the biggest of them being that we can't prevent these kinds of abuses from happening again if we don't know what exactly they were and how they happened. We know a lot already, but we don't know enough.
There are several broad categories of action that are worth discussing here. One is what kind of triage needs to happen before Bush and Cheney leave office to prevent them from hampering an after-the-fact investigation into what they did. The second is what kind of unilateral actions the Obama administration can and should take to advance our knowledge--declassifying documents, reassessing the handling of lawsuits that the executive branch is involved in (particularly with regard to the US Attorneys scandal), and others. And the third is the question of what new tools may be necessary.
In our respective pieces, Scott and I approach that last question from different lines of reasoning, but ultimately arrive at fairly similar conclusions, which is that some kind of bipartisan investigatory commission is the best of several imperfect options. He can speak to his own thinking, but my argument is mostly political: a commission offers a relatively easy out for both Obama and Congress, who have a responsibility to bring some closure to the abuses of the Bush presidency but little real incentive to do so (as you may have noticed, they have a lot of rather pressing issues on their plate). It's also crucially important to frame the investigation as an essentially nonpartisan matter of restoring constitutional protections and the rule of law, which is difficult to do when you have a Democratic Congress or White House investigating their Republican counterparts, even if they do so responsibly. (There also isn't any real reason why this couldn't happen concurrently with the more narrowly focused investigations that various congressional committees and department inspectors general and, in the case of the DOJ, a special prosecutor are still pursuing.)
Since the election, there have been some pleasant surprises on this score. One congressman has quite explicitly put forward the idea of a congressionally appointed commission, and there is anonymous chatter from Obama staffers about the possibility of a executive branch commission. I think the latter is a bad idea, but we can get into that later.
In any case, there's a lot to pick at here--I know some participants in this discussion believe the whole commission idea to be unwise, or disagree about what its scope should be (I would argue that it's worth looking at a broad range of issues--torture, wiretapping, DOJ issues, etc.--holistically, but others have made the case that it should be limited to torture). There is also the very big question of what the intent of such an investigation is: whether it's about bringing individual actors to justice, or simply establishing a historical record of what happened.
Again, thanks to everyone, and let's have at this.
Another advantage of such an approach: today, pressure for prosecutions arises, almost alone, from Left Blogistan and NGO's concerned with human rights abuses.
Letting the sunshine in, finding out how too-broad powers were predictably abused (e.g. bugging troops in the field?!?), and there will be much broader consensus around if not how, at least whether to go forward. As with the 9-11 Commission, let the pressure build until it proves irresistable.
I'm not aware of any pressing statute of limitations problems.
November 24, 2008 2:13 PM | Reply | Permalink
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Hello …
Thanks for breaching this somewhat taboo subject.
I’m sure there will be a few who will chime in with the ol’ Golly gee we don’t wish to make it appear as a “political witch hunt…” In addition to, the refrains of, It’s time to heal the nation, not tear it further apart.
To heal the nation -- the truth be known.
So I say, do the Constitutional duty and make this an investigation with the possibility of judicial implications. Add some teeth as one would say. Non-binding committees become a partisan battle-ground in the nature of their make-up. The outcome is usually quite watered down. Think 9/11 and/or Church Committees.
And one place of interest, here at the Café to look into the crux of the issue is the following thread from back when:
Let the ol' chips fall and all...
Onward and upward…
~OGD~
ps: Ellen ... are ya' listenin'?
*Paddlin’ thru the Café since June 2005*
November 24, 2008 2:18 PM | Reply | Permalink
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Oh, and by the way...
Whatever became of Howard Berkowitz (sp)?
Just wandering and wondering . . .
~OGD~
November 24, 2008 2:25 PM | Reply | Permalink
I'm all for a Truth and Reconciliation style Commission. There is probably ZERO chance of getting to the bottom of anything if it is intended to lead to prosecutions. We need to come to the realization that alot of things were done which by any reasonable calculus were wrong, and possibly illegal. But those that did these things always acted under the color of some law or policy, and proving criminality in that type of case is nearly impossible.
November 24, 2008 2:21 PM | Reply | Permalink
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OK...
There's one ...
I say it's a Constitutional duty. And the incoming AG should be tasked with this duty.
Anyway, I'll be flying back in later today...
It's time for me to go drive the duck hunting dogs crazy.
~OGD~
*Cleared for take-off ... at the Café since June 2005*
November 24, 2008 2:35 PM | Reply | Permalink
This ain't no "golly gee", old boy. I could care less about "political witch hunts" or "healing the Nation". This is about getting something substantive done, and not hanging a big old partisan albatross around the new Prez's neck.
November 24, 2008 3:57 PM | Reply | Permalink
I'm old too, so no disrespect intended!
November 24, 2008 4:03 PM | Reply | Permalink
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Howdy there anewdude …
I take nothing ‘round this place as disrespectful. No big deal. You know what they say about water and a duck’s back…
It’s a very good thing that you agree that this “…ain't no ‘golly gee.’ “ But I am not too sure what you mean by your comment , “I could care less about ‘political witch hunts’ or ‘healing the Nation’…”
But apparently you have no problem with what I originally said that you failed to mention? That being:
Doing the above will knock off your two birds (“…getting something done, and not hanging a big old partisan albatross around the new Prez's neck”).
Thanks for your response … and I have no problem with the “old boy” mantle. I’ve invested a large amount of time getting to it.
~OGD~
*Paddlin’ on in the Café since 2005*
November 24, 2008 6:47 PM | Reply | Permalink
Complete immunity in the U.S.A. for complete, exhaustive, disclosure: that it shall not happen again.
Oyez, oyez!
November 24, 2008 3:04 PM | Reply | Permalink
Marty Lederman for head of OLC
Steven T Wax for Atty General.
November 24, 2008 2:41 PM | Reply | Permalink
I'm actually willing to take prosecution off the table (well, prosecution by the US government, anyway) if it leads to a full and public airing of what happened across the spectrum from cooked intelligence, to renditions, to torture, to detainments, to wiretapping -- put everything on the table.
Yes, it means that in advance we will agree not to prosecute the wrongdoers. But it won't matter. We should then join the International Criminal Court. Since the evidence against those who committed crimes will have been made public, no one from the Bush administration will be able to safely travel abroad ever again. They will be contained as Pinochet was. A light sentence, for sure, but a consequence (one that Kissinger understands well).
November 24, 2008 2:48 PM | Reply | Permalink
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Hmmm . . .
No immunity!
But you already most likely knew that with me.
No one is above the law!
~OGD~
November 24, 2008 7:10 PM | Reply | Permalink
Oh, I agree OGD. But if we give them federal immunity and then sign on with the ICC... it's the same as not giving them immunity. Just changes the venue!
November 24, 2008 7:28 PM | Reply | Permalink
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Well . . .
Nice seeing you Destor ... Hope all is well with you.
I feel we should never shirk our responsibility and cause the World Court to take care of our dirty laundry.
It only shows to those abroad that for some reason we as a nation cannot fix a wrong in our own backyard.
By the way ... what ever happened to ol' Howard Berkowitz?
See ya' 'round the Cafe.
~OGD~
November 24, 2008 11:34 PM | Reply | Permalink
A couple of posts worth considering in this discussion:
Will Rove Escape Justice?
A Day of Reckoning For the Eleventh Circuit
November 24, 2008 2:50 PM | Reply | Permalink
One of the noteworthy political blunders of recent times was Pelosi saying "Impeachment is off the table." This simply gave Bush a blank check to accompany the blank check he already took for himself.
If the Bush gang isn't made to pay dearly in some way for their machinations, a precedent will be set for future Presidents to follow in the Bush/Cheney footsteps.
Will Obama commit another Pelosi 'for the good of the country' or will he return us to the natural order by delving deeply into the last 8 years, prosecuting where warranted, and making public all that doesn't harm us?
On another note; With a new Attorney General, what will happen to the subpoenas issued by Congress and ignored by the Bush gang these last two years?
November 24, 2008 3:19 PM | Reply | Permalink
John,
Your points are very well taken. I also firmly believe that Cheney and co. are among the most determined miscreants ever to seize the reins of any Government, and they will not go down without a fight- by which i mean, they want to set precedent, they want to erode our Republic, even after they are long gone. And with their onetime, um, 'adversaries' in such a concilatory mood as they are, I don't see this as a fair fight.
If the Democrats had remembered the lessons of the Nixon Administration... but how quickly they forgot. Cheney has taken the measure of this country...
November 24, 2008 8:44 PM | Reply | Permalink
Scooter Libby is an attorney, and appointing him to head an investigation would send a strong bi-partisan message that Obama wants to get something done, not just be idealogical. Since Libby also represented Marc Rich, he has a working relationship with the incoming Attorney General, which will only serve to grease the wheels of pragmatic and non-idealogical exploration of how to retroactively de-criminalize politics.
November 24, 2008 4:20 PM | Reply | Permalink
Libby might also have some interesting things to say about he can de-criminalize himself.
November 24, 2008 8:45 PM | Reply | Permalink
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Sure . . .
And the cow jumps over the moon.
~OGD~
November 24, 2008 11:38 PM | Reply | Permalink
I've put forth the idea, elsewhere, that a fruitful approach might be for Obama to release all the relevant documents and memos, in exchange for a promise from congress that they won't conduct investigations into what's revealed.
This would ease Obama's concerns that congress might spend too much time investigating the Bush era, rather than moving forward in the Obama era. Let the bloggers, journalists, public interest groups, etc., comb through them. It would give the documentary facts a more complete airing than any congressional or special counsel investigation is likely to, and a helluva lot sooner. It also wouldn't prevent any private actions that might arise from the facts.
I don't see this idea being discussed anywhere, so I'm assuming there's some obvious, dispositive problem with it that I'm not seeing. If so, a little help here?
November 24, 2008 5:31 PM | Reply | Permalink
Biggest problem I see is a systemic one, of the Executive withholding evidence unless Congress promises not to do its Constitutionally-required job of oversight.
Any solution should ultimately restore the system of checks and balances, not permanently damage them further.
November 24, 2008 5:59 PM | Reply | Permalink
ISTM my proposal doesn't make things any worse on that front; it simply ignores the question. The Obama WH hasn't claimed executive privilege on these materials, hasn't been subpoenaed by congress for these materials, and almost certainly won't be.
Is ignoring the question ideal? No. But "ideal" has long since left the barn.
Our current situation points out a flaw in our system: there is no non-impeachment way of recalling a president, and especially not a 2d-term president. This leaves him/her -- in all but the most extreme circumstances, and sometimes even then, as the present case demonstrates -- completely unaccountable. It's fundamentally anti-democratic. We need some form of the no-confidence vote; something that can bring a runaway executive up short.
Lacking that, something like what I propose is, ISTM, the best option practicable.
It eliminates the partisanship argument, it allows congress to move forward on our current crises (rather than recently past crises that they failed to address at the time), it leaves the possibility of prosecutions open, and it doesn't further prejudice the separation of powers problem.
November 24, 2008 7:04 PM | Reply | Permalink
Wow.
A million dead Iraqis. Uncounted humans from across the world kidnapped and tortured. Private correspondence culled and combed for unknown purposes with unknown consequences. housands of dead Americans. Billions of dollars vanished in Iraq. Trillions of dollars promised (some delivered) to bail out those who enriched themselves from governmental negligence.
And someone asks -- ASKS!! -- if we should somehow investigate?
As long as Bush holds himself above the law, as long as complicit or stupefied Democrats declare "impeachment off the table", as revisionists actually wonder if a Commission might bring some of the excesses of the Bush regime to light, we don't live in a free country. We can't speak of a Constitution if it can be violated with impunity. We can't have laws if they're enforced or not enforced according to political expedience. We, as citizens, cannot make informed decisions if our State keeps its criminal acts secret.
Good God!!! Why is this even a question???
November 24, 2008 6:04 PM | Reply | Permalink
One more thing ...
No effing immunity for torturers and murderers. None.
November 24, 2008 6:06 PM | Reply | Permalink
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A yes . . .
I like the cut of your jib, Milton.
Stick around. You’ll be amazed at the flurry of illogical reasons and lazy rationalizations for not holding this wild bunch responsible for their actions.
If you wish take the time a run through this old blog thread of mine and the comments for a small example.
I hope you stick around for future comments.
~OGD~
*Member of the Cafe since June 2005*
November 24, 2008 7:07 PM | Reply | Permalink
Yes, but the precedent is there.
Kissinger got away with helping kill millions and create dictatorships that tortured people.
The new Sec'y Treasury used to work for Kissinger, after said war crimes were committed.
So this is America.
November 25, 2008 1:18 AM | Reply | Permalink
For many things, I prefer the Commission approach, but only if Congress pre-agrees to certain terms. One would be to draft bills and hold hearings on all recommendations within a set time period -- perhaps 90 days, after the Commission completes its investigative and report work.
Let me provide an example -- we have on the table Cheney's claim that the Vice Presidency is neither fish nor fowl, neither legislative nor executive branch, and thus not subject to existing law and regulation, for instance the Presidential Records Act. We need clarity on this, a clean fix that doesn't involve amending the constitution. From what I know at this juncture, I believe there is a clean fix. First, make all Vice Presidential paper part of the Presidential Record requirements, as all VP executive action derives from Presidential Powers. Require that VP executive actions and deliberation materials be retained as part of the Presidential Record, and eventually part of the National Archives administered Presidential Library. Require that the President make and retain records of any delegation of authority to the VP as part of the Presidential Record. Second, have Congress require that all VP papers and materials related to VP legislative responsibility activity be filed with and retained by the Library of Congress. Require that the Library of Congress make an electronic copy of all VP papers, and place in the Presidential Papers.
Ever since Carter/Mondale we have been informally redesigning the Vice Presidency -- time is in law and regulation to formalize this change, yet stop the evolution into an unregulated branch of government. If these changes can also be reflected in the budget -- the OVP office has no real staff beyond what the President delegates -- I think the problem is clearly solved.
I think a commission could apply this kind of problem solving to many of the problems we have encountered if, and only if, there is a commitment to put recommendations into legislative form in fairly short order. I think the Commission's mandate should be across the board -- DOJ, messing with Intelligence, burrowing political appointees into the Senior Civil Service, contracts -- the whole ball of wax. Agreed, it doesn't put anyone behind bars where many of us believe they belong, but it does unwind the evil.
November 24, 2008 7:57 PM | Reply | Permalink
Nothing we do now or in the future can correct the mistake made by Congress in not pursuing impeachment of Bush and Cheney. That was the time to correct the problem, the method to correct it, and the only constitutional thing that could be done.
We had a belated opportunity to correct a subset of the mistake early in this month, but again we chose not to take advantage of that opportunity - we reelected our congressmen.
As far as I am concerned, the major villains in all of this are the American citizens. We are the ones who voted for an obviously incompetent Bush as our president, then, in the face of overwhelming evidence of his proven incompetence, we reelected him. We are also the ones who voted for an even more incompetent and unqualified Alaska governor as vice president just 3 weeks ago, but fortunately we didn't vote in sufficient quantities to cause her to win.
Rather than ease our shame by prosecuting the outgoing administration I think we should do something about the root causes of our shame - our utter ignorance about our government and what it takes to run it. So, how about a tax payer paid for TV show to be run for four hours every night for a year, on all 100+ channels of TV now available, with that show attempting to teach us some high school level Civics lessons? That would do more good for America than any of the proposals I have read about here.
November 25, 2008 12:24 AM | Reply | Permalink
I think there is only one question that truly needs to be answered.
Did the intelligence data as made availabale to the WH and that went back and forth between the WH and our intelligence divisions indicate a degree of ambiguity that precluded a rational decision to go to war with Iraq?
Yes or no. And let the chips fall where they may.
November 25, 2008 4:43 AM | Reply | Permalink
A possible way to address the core purpose of an appropriate response to the Bush Administration's history, clear of politics, is to make such an investigation a continuous function of the Legislature. The simplest demand that this type of investigation makes, is that of the people having the right to know what things were done in its name even as certain Executive Actions lead to the possibility of secrecy or invisibility. We charge the Legislature to act by initiating an independent commission to identify every procedural change and the orders that guide them. This commission will be instituted after every change in Executive Administration. A special representative from each branch will be assigned to address any special issue of law. Bottom-up ministerial tracking of procedural changes must always lead to an official act, or appropriate charges will be filed.
In the end, it should be viewed as and performed neither as a special event nor in benefit of, nor a responsibility of the incoming administration; it is another civil check of power - every time. For all we know, Obama might fall to the same abuse of power.
In the same idea, individual Congressional reports should follow, with approachable reports to the home district including the complete calender with contacts and meetings, as well as gifts, donations and votes (including connections).
November 25, 2008 11:40 AM | Reply | Permalink