An essay by two former Reagan and Bush #41 officials in this morning’s Washington Post highlights the dangers of any investigation of criminal activities by the Bush #43 administration, especially regarding the conduct of the war on terror. Two such proposals have already been introduced in the Congress.
The authors, David Rivkin, Jr. and Lee Casey are correct in noting the constitutional difficulties in establishing such blue ribbon commissions: Government powers, such as the power to grant immunity, reside in the Congress or in the Justice Department. Those in the executive branch charged with exercising the intrusive prosecutorial power of the government are subject to Senate confirmation precisely to avoid turning the nation’s legal system into a tool of partisan warfare. All such caveats should be borne in mind as the Congress, the Obama administration, and the nation try to come to terms with the legacy of the past eight years.
The model of the "Truth and Reconciliation" commissions is instructive. These are used in countries where any effort to prosecute previous criminal acts would only ignite further civil strife. But, a society built on lies cannot endure either and the victims of criminal acts have a moral claim not to have their stories buried with their bodies. The secret of these commissions is that they do not only seek truth, they seek reconciliation, and they recognize the relationship between the two. They grant blanket immunity in exchange for telling the truth.
Any special commissions set up to investigate the Bush administration should have clear instructions: They are not seeking to prosecute anyone. Like the 9/11 Commission, their job is to unearth what happened not to pass judgment. For this they need the subpoena power and the power to grant immunity. If Bush opponents do not want to grant immunity, they should follow the standard procedures used by the justice Department to prosecute all wrong-doing.
Rivkin and Casey highlight the dangers of the commissions but there is also a danger in letting the Bush years fade into history without confronting exactly how they over-stepped traditional constitutional limits. Congressional Republicans, as well as Democrats, have an institutional interest in defending against encroachments by the executive branch. But, Rivkin and Casey are right to point out the dangers of such commissions and those who seek them should take heed of their concerns.
Curiously, they also overlook one other danger. The 9/11 Commission is a model for how such commissions are supposed to work, but did you read their report? It shows convincingly what the government can do to ensure that a group of terrorists never again hijack planes and fly them into buildings. But, is that the danger today? Haven’t the terrorists’ planners moved on to other battle plans? Many of the recommendations of the 9/11 Commission fudged the key decisions, in the way consensus reports always fudge key decisions, resulting in a hash of recommendations many of them contradictory.
So, what to do? A blue ribbon commission with a carefully limited role, empowered to investigate, subpoena and grant immunity is appropriate. If they uncover evidence of wrong-doing that they believe is so horrendous they can’t grant immunity, that case should immediately be removed from their concern and turned over to the Justice Department. And, the composition of the Commission should be such as to ensure that they do not forget that its goal is reconciliation as well as truth. That should be easy to achieve if they made Bush #41 and Bill Clinton co-chairs with former Speakers Newt Gingrich and Dick Gephardt assisting.