The Department of Justice has begun to release documents disclosing the Bush administration’s legal justification for setting aside existing laws in the prosecution of the so-called war on terror. The revelations have included heretofore unknown claims for the discretion of the executive branch to violate the rights of Americans at home, including the military’s search, detention and trial of civilians without appeal in the United States. As Scott Horton wrote in the December 2008 issue of Harper’s, “No prior administration had been so systematically or brazenly lawless.” In the meantime, both House and Senate are moving ahead on investigations of authoritarian rulings and policies of the Bush years. The chairman of the Senate Judiciary Committee, Senator Patrick Leahy of Vermont, has begun an effort to establish a truth commission to examine the treatment of alleged terrorists; and the chairman of the House Judiciary Committee, Congressman John Conyers Jr. of Michigan, has already issued a report on abuses that will serve as a basis for further probes. He has already succeeded in compelling the former Bush aides Karl Rove and Harriet E. Miers by subpoena to testify on the role politics may have played in the firing and hiring of U.S. attorneys.
President Obama has been wise to keep his distance from this necessary process of political cleansing, allowing longtime civil servants to release the records and make recommendations for prosecution. While we are not recovering from protracted civil conflict, as are many countries that have conducted truth commissions, there is a public interest in refraining from inflaming partisan tensions, especially when the great recession demands bipartisan unity in restoring economic well-being to the country. For the long term, however, there is also an undeniable public interest in holding accountable officials who would unilaterally abrogate civil liberties without due process and in setting obstacles to tyranny of the executive in any future crisis. Only on this course will we remain, as John Adams said, “a nation of laws and not of men.”
The political class as a whole, and Congress in particular, will be negligent if they fail to bring to light crimes against liberty. There is no rush to judgment. Pundits point out that no one who is president will diminish the potential authority of the presidency, even though in another position he or she might regard a claim or practice abusive. Congress, for its part, is not enthusiastic. There is a proper fear of provoking rancorous partisanship at a time when it can do the greatest harm to national economic recovery. In addition, there may be a large measure of reluctance to admit the shameful negligence by Congress through lack of oversight, a supine relationship to the executive branch and the casual passage of ill-considered legislation like the Patriot Act.
But Congress should not continue to exempt itself from guaranteeing and defending the rights of Americans. Re-examination and judgment of policies and practices that seem to amount to internal subversion must be political as well as judicial. It is not enough for principled civil servants to recommend prosecution for the most egregious offenders. Political leaders must take responsibility for bringing the truth to light, for correcting past errors and for establishing accountability on the part of those who either violated the rights of American citizens or conspired to do so, as well as for those who chose to abuse the human rights of innocent foreign nationals.
In conducting its inquiries, Congress faces difficult choices over whether to grant immunity from prosecution to suspected wrongdoers. Such grants will entail sacrificing some measure of justice and deterrence for the sake of full disclosure. In the interest of civic peace, prosecutions should be few, restricted to key policymakers and their primary legal advisers. Immunity may be given to others who can shed light on the dark secrets of the last eight years but who did not bear primary responsibility for the alleged offenses. The Abu Ghraib trials, in which the foot soldiers were punished while the commanders and policymakers escaped punishment, are the wrong model. Prosecutions, disbarment and other mechanisms of accountability are needed at the top levels of government decision making. Such accountability is needed to provide a deterrent to legalized coups in the future.
Finally, responsibility for the breach of Americans’ rights falls more widely, with the Congress, the media and the public. As we have done before in these pages, we recommend that at an appropriate time a national commission be formed to assess broader responsibility for the Bush era offenses. “If the people wish to retain sovereignty,” as Mr. Horton wrote, “they must also reclaim responsibility for actions committed in their name.”