The National Catholic Review

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.”


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Roberta Flynn | 5/3/2009 - 8:53pm
Thank-you for these thoughts! Now what can the public do to see that this is done - other than "writing your congressman" - or is that the most effective action? Please make this a "drumbeat" of America magazine!
Ed Wade | 4/13/2009 - 9:06pm
Regardless of how the response is reunning, I support America's right to address this civil action seeking to bring to closure the abuse of power by those in the Catholic Church. I take liberty to substitute words from the article that should apply directly to our church heiarchy: (from para #5) "But Congress (the Hierarchy/CCAB) should not continue to exempt itself from guaraanteeing and defending the rights of Americans (innocent children). Re-examination and judgement of policies and practices that seem to amount to internal sbversion must be political as well as judicial (moral). Political leaders (the Catholic Heiarchy) must take responsibility for bringing to truth to light, for correcting past errors and for establishing accountability on the part of those who either violated the rights of American citizens (Catholic innocent children) or conspired to do so, as well as for those who chose to abuse the innocent (Catholic children)." Further comment on last paragraph: "Finally, responsibility for the breach of American's (Catholic children's) rights falls more widely with the Congress (CCAB/Heriarchy) the media (America Magazine) and the public (laity). As we have done before, we recommend that a national (lay/clerical) commission be formed to assess broader responsibility for the Bush era (decades if not centuries)offenses." And now the kicker: who has any responsibility within the Church?? By applying the same principles and actions that are recommended for the Bush actions to the Catholic Church and the manner that is has failed the 99.1% of Catholics (the laity) who wish to retain their faith and commitment to the church that Christ established, the laity must then claim responsibility for ensuring that actions committed by the clergy are subject to justice and moral standards commiserate with their ordained vows. My current complaint about America Magazine is, like the magazine has on previous occasions called for actions to address Bush era activities, I am disappointed that they continue to ignore the more poignant Catholic issue of subversive church management by the hierarchy and your failure to seek the same justice (moral justice) that you seek for civil activities. Please, look to thyself and do as you note, accept the responsibility for Catholic children's rights, lay Catholic rights and the breaches of those rights. Edward Wade
gabriel marcella | 3/18/2009 - 11:56am
Truth commissions are, as the editorial makes clear, appropriate for deeply conflicted societies that need to heal wounds by apportioning blame and provididng for some form of "restorative" justice in order to go forward in peace and reconciliation. We are nowhere near such extremes, and thererefore should not apply the same remedy. I truly wonder if the political process proposed by editorial would serve the cause of justice or the cause of politics. Note also that more than "foot soldiers" were punished for Abu Ghraib, though not enough.
Ruth Burr | 3/17/2009 - 7:15pm
"Ill considered legislation like `The Patriot Act'?" Give me a BREAK !!!!! That's the same 'Patriot Act' that helped disrupt and stop plans to kill more of our citizens. I'm disgusted by America's Liberal Academia and the way they have influenced our universities and students. Of this our CATHOLIC Universities are SO GUILTY. NOW I'm REAlly upset to read this same kind of insubstantial tripe coming from our very LIBERAL AMERICA publication. This will be one short subscription. I can get this same editorial from CNN, MSNBC,ABC or NBC if I wanted trash. Ruth Burr.
MICHAEL WALSH REV | 3/17/2009 - 2:22pm
The Democratic Party told you what to write and you follow directions well. What about your god's (Obama) attack on the unborn? Oh, I'm sorry that would be criticizing a Democrat which is sacrireligious.
Carl Mangine | 3/16/2009 - 11:09pm
We have enough "abuse" problems in the Catholic Church with our priests; we don't need to worry about the federal government. Lets take the "plank" out of our own eye, before we attempt to take the "splinter" our of the eye of another!!
Carl M | 3/16/2009 - 11:04pm
We have enough abuse problems in the Catholic Church without worrying about the Federal Government. Let's take the plank out of our own eye before we attempt to take the splinter out of our brothers!!
PK | 3/16/2009 - 10:34pm
Instead of digging into the "brazenly lawless" Bush administration, I suggest you focus your editorial spotlight on the stem cell and government sponsored abortion policies just announced by Obama and the so-called Catholic politicians who support them. In other words, get over your brazenly leftist, anti-war, anti-Bush (who kept us free from attack by those who would behead us in a heartbeat) bias and assess the motives of those who are now intent upon knocking our republic off of the moral and structural foundation established by our founders.
Paul Louisell | 3/16/2009 - 9:16pm
When I start reading about "truth commissions", I can't help think about totalitarian countries launching a propaganda campaign. As a life-long resident of Michigan who has observed Rep. Conyers' body of work, I am automatically skeptical of any investigation which he may be initiating. He would be the perfect choice for leading a political witch hunt. The editors of America must be overjoyed with the socialization of our country. Instead of encouraging Congress to lay blame at the feet of the Bush administration, why don't the editors ask Congress to focus on abolishing the laws they passed that made the actions possible. Or, better yet, why don't they get Congress to admit that it allowed the abuses to happen because at the time the abuses of personal liberty seemed politically helpful. The editors of this magazine should not encourage our boys and girls on the Hill to take shots at each other when they have more important work to do - like getting the banks to lend money to businesses again. Your political biases never cease to disappoint.
Christopher Mulcahy | 3/16/2009 - 2:42pm
Yikes! You Jesuits appear to have stepped on your Roman collars with this editorial. It might have helped your cause if you had carefully and clearly identified one discrete example of the Bush administrations abuse of constitutional law. In the absence of specifics, one must conclude that you are drinking the leftist kool-aid.
Christopher Mulcahy | 3/16/2009 - 2:40pm
Yikes! You Jesuits appear to have stepped on your Roman collars with this editorial. It might have helped your cause if you had carefully and clearly identified one discrete example of the Bush administrations abuse of constitutional law. In the absence of specifics, one must conclude that you are drinking the leftist kool-aid.
John Walton | 3/16/2009 - 8:26am
While the "Truth Commission" is busy at work, perhaps they will also investigate Lincoln's suspension of "habeas", and Roosevelt's internment of a couple hundred thousand Nissei.
Ed Doyle | 3/15/2009 - 9:57pm
The comments are running against you, guys; 10 to 2 with my posting. This "Truth Commission" is a cynical, pernicious political 'witch hunt'. And I have heard a lot of conservatives say, "Yeah, let's have an investigation. There are probably a lot of things that we can open up on the left side of the aisle." I am not aware of anyone that has been victimized by the Bush security policies. I am aware that President Obama quietly approved their continuation on the 22d of January. Maybe the Truth Commission could start there by having the President explain his rationale. Possibly save the taxpayers a lot of time and money. It also seems that there is no ongoing public outcry or interest in this kind of inquiry. The folks don't care. Like the Special Prosecutor fiascos this would be another can of worms that would go on endlessly as politicians tried to grab headlines and bored the American people out of their skulls. And when are we going to close Gitmo and place these poor disadvantaged alleged Terrorists in the general Federal prison population. Then you are really going to see some human rights abuses to write about. Amnesty International and CAIR will be working overtime. Yes, the more that I think about it, this Truth Commission could really have some interesting twists to it. Best laid plans of mice and ....etc.
mike kennedy | 3/15/2009 - 6:47pm
While we're at it, lets look into the Volstead Act.
raymond rice | 3/15/2009 - 6:00pm
The Bush administration did many things challenging liberty.However these acts pale in comparison to the Democratic (Obama) administration that promotes financially, and in many other real ways, abortion , the greatest violation of Human Rights in history! Greater than slavery!, greater than Jim Crow Laws!,greater than voting rights and housing discrimination (all of which also prospered under the administrations of Democrat administrations. Why doesn't America Magazine advocate a Truth Commission to PROVE or DISPROVE what many scientists KNOW. Obama wants to fund the destruction of scientifically proven INNOCENT HUMAN BEINGS nurtured in their mothers womb, who as HUMAN BEINGS deserve the same protection as a HUMAN BEING being nurtured at its mothers breast. Left wing media and the abortion industry would oppose this Truth Commission as they have in the past.
Professor Emeritus A.J. Carlos | 3/15/2009 - 1:56pm
Bravo, editors! I was considering cancelling my susbscription to AMERICA, but now I will gladly extend as much as possible. Excuse me, I thought you people were yes-men not only to the Vatican (your vow of obedience should not prevent you from telling the truth) but to the Republican right wing. Go after the Bush people, indict them if there is proof, and try them. An objective trial should determine whether they are guilty or not! We could teach the whole world a lesson on making our leaders responsible!
Jack Slade | 3/14/2009 - 1:21pm
Oh for God's sake--You've got your precious left-wing administration, tell yourself "All's well that ends well" and let the poor man rest in peace.
Leonard Fehringer | 3/14/2009 - 12:06pm
Hogwash! When America Magizine supports a investigaion by the bishops of the Catholic church of the pro-choice Catholic politicians who have been complicit in the deaths of millions of unborn babies, will I support pro-abortionist Catholic Patrick Lahey's witch hunt of George Bush. But you and I both know that just ain't gonna happen!
MICHAEL WALSH REV | 3/14/2009 - 9:57am
Is America not concerned with Obama's crimes against the unborn?
Geoffrey O'Connell | 3/13/2009 - 11:25pm
joe driscoll | 3/13/2009 - 10:52pm
Two things: 1. I am unaware of any involvement by our military in the violation of "the rights of Americans at home, including the military's search, detention and trial of civilians without appeal in the United States." Posse comitatus specifically prohibits our military forces from any such actions. 2. U.S. attorneys serve at the pleasure of the president. Bill Clinton sacked the whole lot during his term, yet there were no objections when that happened. Congress would better use its time to fix the economy (without the earmarks)than start a witch hunt which will go nowhere.
Joel Yablunsky | 3/13/2009 - 9:10pm
In reading the comments following the editorial, I was a bit shocked to find such disapproval of having probes into the conduct (and misconduct) of the Bush Administration! It is true, the Bush administration was not all bad; after all, under the vigilance of the Bush administration we have not suffered another terrorist attack, and thanks be to God. However, to ignore and pass over the past as a hiccup would be doing the American people a disservice. There have been egregious violations of constitutional law in the past eight years. The Bush administration has taken too much power from the legislative and judicial branches through abusing and overstepping their boundaries (i.e. the reinterpretation of laws). I am sure there are many things that can be unearthed from a probe into the Bush Administration that many of us have yet to discover. Beyond this point, this is about seeking justice and truth, something that Jesus calls us to each and everyday. I applaud America Magazine for being brave enough to tackle this difficult and divisive issue.
Denis Quinlan | 3/13/2009 - 8:56pm
So you say the Bush Administration has committed crimes against our liberties, and you want an investigation. Why investigate? Why conduct an inquiry? The whole tenor and tone of your article makes it clear you have already reached a verdict. And now you are eagerly sharpening the blade on the guillotine to avoid any delay in executing a sentence. Some specifics might have added a degree of credibility to your charges, maybe even a modicum of impartiality. Instead you left your readers with another partisan broadside, just what we need right now. Editors are entitled to their ideology like everyone else but couldn't you at least be a little subtle about it? When it comes to making allegations substance does matter. Yes, facts are a stubborn thing. For the current editors of AMERICA magazine it's time for some remedial classes in journalism.
Jim Doherty | 3/13/2009 - 8:05pm
I find this "witch hunt" motivated column offensive. I have yet to hear, or see clearly documented, from any authoritative, objective source exactly what "crimes" were committed by the Bush administration. George W. Bush did what he had to do to protect us and the nation, which is the first and most important responsibility of all US Presidents. Unfortunately, not all of them recognized that responsibility, much less carried it out so successfully. The hypocrisy of the demo-liberals is beyond belief - case in point being Sen Leahy, who broke the law by divulging US classified information and remains unaccountable to this day. If the left is so intent on examining and judging public officials, why do we hear no clamor for investigations of Rep Barney Frank and Sen Chris Dodd for their collusion in the financial crisis we face today? All that being said, it is embarassing to see such a politically bigoted article in a Catholic publication.
Joseph Franklin | 3/13/2009 - 6:17pm
This is nothing more than far left democrats seeking revenge for the Clinton impeachment. No prior administration has had to protect America from another 9 11 attack. You might try some editorials about the Obama administration reversing the Mexico City abortion policy and his reversal of Bush's prohibiton against embryonic stem cell research.
Earl Drinkard | 3/13/2009 - 5:19pm
Your naive viewpoint and position is what lead the U.S. beginning with Jimmy Carter to Clinton, and now under Obama to fail to realize that we have been at war with Islamofascism for over 30 years. Your position and that of the idiot members of the new US artistocracy, Congress, only weaken the USA and promote and are facilitating another deadly terrorist attrack. For over 35 years I have fought this war against terrorism, and your Nevel Chamberlain approach to the islamofascist is what lead the world into World War II. Obama and his leftie gang are making all the right moves to weaken us, and we will see a series of major attacks within 6months. President Bush protected us and took those actions necessary to protect American lives. Are Congress and Obama doing the same now? Wake up
MICHAEL WALSH REV | 3/13/2009 - 5:04pm
President Obama has authorized federal funding of embryonic stem cell research, reversed the Mexico City Policy and is contemplating doing away with a conscience clause which protect doctors who find abortions morally reprehensible and the editors of America Magazine write about past actions which are inconsequential?? There is no need to read America--if one wants to know what will be featured in the magazine, go to the Democratic Party's talking points. The editors are obedient servants.
James McPhillips | 3/13/2009 - 4:22pm
For Gods sake "Get over it" - George Bush is gone - NO Americans have had their rights violated As Mr. Horton wrote "No prior administration has....been so lawless" - thats because they sat on their butts while terrorists roamed freely knowing Pres.Clinton had ordered all funding for intelegence gathering be halted - while Sen.Leahy and his ilk did nothing but hold another hearing into "why the chicken crossed the road". Surely the voters in Vermont expect more from their "inquisitive" Senator than wasting time on another "probe" which always is politically motivated.
Andrew Russell | 3/13/2009 - 2:42pm
Now is the time for all faith filled Christians who supported anti-abortion candidates to put pressure on those candidates to support other Christian virtues such as honesty and integrity.
Dennis O'Brien | 3/13/2009 - 2:34pm
Like others on the extreme and hysterical Left, you take it as a given that crimes have been committed by the Bush Administration and its legal advisors. You will be amazed to learn that there are many who disagree with you, and think you are advocating the highly destructive and vindictive course of trying to criminalize decisions of your political enemies, emulating the destructive practices of unstable Third World countries. You and the MoveOn crowd are playing with fire. I hope the Obama Administration is more thoughtful and sober than you are.
JM | 3/13/2009 - 2:34pm
The constitutionality of President Bush's actions has been examined several times. The treatment of terrorist prisoners, who weren't Americans, was specifically examined, as was the right to wiretap phone calls. The wiretapping has been going on since President Clinton and the treatment of wartime prisoners is in line with every war since Lincoln's time. Let's stop with the Bush bashing and "move on". Hasn't that been the war cry of these silly, vindictive Democrats since Mr. Bush won in 2000? Guess it's time to cancel my subscription to this foolish rag.
ROBERT MCNULTY | 3/13/2009 - 2:05pm
It is not clear to me where the abuses to which you refer occurred. You published all through the Bush years. I went to church regularly. I still traveled. Are you aware that there was a specific decision by the Secret Appeals court upholding the communications action? In retrospect, I think I was opposed to virtually all Bush's plans, but did I feel inhibited by him.
salvatore | 3/13/2009 - 1:57pm
"...Bush administration's crimes against liberty". And "... a national commission be formed to assess broader responsibility for the Bush era offenses." Crimes and offences stated as facts - Keith Obermann style. Saying that the editors' forma mentis manifest no points of contact with or resemblance to the intellectual virtues traditionally cherished by the Church (and especially the Jesuits - when these were giants) is tantamount to an understatement. [Besides,such a paramount concern at a juncture in which Obama appoints gov Sibelius as HHS secretary and issues THAT Executive Order on Stem Cell Research.] I think a fair statement about the editors is that these people have simply lost the very notion of Fear of G-d.
Frank Nette | 3/13/2009 - 1:54pm
Barack Hussein Obama II was born in The Coast Provincial General Hospital at Mombasa in Kenya at 7:24 PM on August 4th 1961. And Kenya has a birth certificate to prove it. His relatives state they were there in Kenya with the mother when he was born.Understand, the Hawaiian Authorities may be able to Issue a Hawaiian Birth Certificate under these circumstances but they cannot make you a US Citizen. A child born in Kenya to and underage US Female and a UK and Colonies Citizen in 1961 was not born a US Citizen under any US Federal Law, under British Law, or International Law. The only way such an Individual could be a US Citizen in terms of the XIVth Amendment, or any Statute, or Code of US Federal Law is by Naturalization. Obama could have somehow been deemed "natural born" that citizenship was lost in or around 1967 when he and his mother took up residency in Indonesia, where Stanley Ann Dunham married Lolo Soetoro, an Indonesian citizen. Obama's registration to Fransiskus Assisi School In Jakarta, Indonesia which clearly show that he was registered under the name "Barry Soetoro" and his citizenship listed as Indonesian. This is lawless and true. Where are the cries of justice? Quit! It's George W. Bush's fault anyway...The truth will prevail but let us remember the nation was and still is at WAR, and the majority of Americans are NOT being asked to make any sacrafice in the national effort...even if you agree or disagree with the wars.
Ed K | 3/13/2009 - 1:46pm
Dear Editors: I take some issue with your characterization of the "so-called" war on terror. Those planes flying into the World Trade Center, Pentagon and field in Pennsylvania (destined for the capitol) are not figments of our imagination - they really happened. Like his policies or not, the President was able to prevent further attacks on innocent Americans at home, and the war on terror inflicted perhaps irreparable damage on international terror networks. Yes, there may have been usurpations of liberties, but I ask two questions: in what way were these powers abused, and are not such usurpations necessary/justified in response to unprecendented threats? Finally, I ask what place such a politically-oriented editorial has in a journal of American Catholicism?
M Daniels | 3/13/2009 - 1:35pm
Come on ... stop with the far left nonsense. We desperately need a Catholic publication dealing with Catholic issues, not a cool-aid drinking leftwing mouth piece. Quoting Scott Horton with regard to George Bush is ridiculous. Mr. Horton is a member of the board of the National Institute of Military Justice - which of course sounds impressive until you investigate and find it is an organization supported by George Soros. Why must a respected Catholic organization, which we urgently need to speak for the Catholic Church, deal in such political nonsense. Come on editors! (By the way I love that you don’t even have the courage to identify yourselves but hide behind the word “editors”.)

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