DiFi Can't Handle The Truth

Yesterday the Senate Judiciary Committee held a hearing on Patrick Leahy's call for a truth commission to investigate the crimes of the Bush Administration. Obviously the events of the past couple days, with the release of OLC memos that really transformed the concept of democracy in the Bush era, is revitalizing this debate.

Justice Department officials said they might soon release additional opinions on those subjects. But the disclosure of the nine formerly secret documents fueled calls by lawmakers for an independent commission to investigate and make public what the Bush administration did in the global campaign against terrorism.

The chairman of the House Judiciary Committee, Representative John Conyers Jr., Democrat of Michigan, said the revelations, together with the release of new information about the Central Intelligence Agency’s destruction of 92 interrogation videotapes, had underscored the need for a commission that would have the power to subpoena documents and testimony.

The OLC memos are still extraordinary, so horrifying in the picture they paint of executive power that the head of the OLC, Steven Bradbury, felt the need to disavow them near the end of the Bush regime. It's likely that he did so to take the heat off of himself.

The increased calls for a greater public accounting come as the Justice Department’s internal ethics office is preparing to release a report that is expected to criticize sharply members of the Bush legal team who wrote memorandums purporting to provide legal justification for the use of harsh interrogation methods on detainees despite anti-torture laws and treaties, according to department and Congressional officials.

The Office of Professional Responsibility at the Justice Department is examining whether certain political appointees in the department knowingly signed off on an unreasonable interpretation of the law to provide legal cover for a program sought by Bush White House officials.

The report is expected to focus on three former officials of the Office of Legal Counsel: Mr. Yoo, a Berkeley law professor, now on leave at Chapman University, who was the principal author of opinions on national security matters from 2001 to 2003; Jay S. Bybee, who oversaw the counsel’s office during that period and is now a federal appeals court judge; and Steven G. Bradbury, who oversaw the counsel’s office in Mr. Bush’s second term.

Mr. Bradbury wrote two of the opinions released on Monday. Written last October and this January, they broadly repudiated the aggressive theory of virtually unlimited commander-in-chief power at the heart of Mr. Yoo’s memorandums.

But there ought to be no get-out-of-jail-free card for the actions taken as the result of these memos. Glenn Greenwald looks at one of the documents.

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments. It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens. And it wasn't only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls "domestic military operations" was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying -- in secret and with no oversight -- on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.

As Harper's Scott Horton says, "We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship."

John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the President as commander-in-chief. The rest of the Constitution was apparently printed in disappearing ink.

Yoo, who is hiding out in Orange County at Chapman University, admitted in an interview to the OC Register only that his memos "lacked a certain polish," in a profile more concerned with how he's enjoying the beaches and Vietnamese food of Southern California rather than the "hippies, protesters and left-wing activists" of Berkeley. Somehow, he's still teaching law. Jay Bybee, the other major player in the composition of these memos, is a 9th Circuit Appeals Judge in San Francisco. Bruce Ackerman recommends impeachment. More on the memos from Jack Balkin and Anonymous Liberal.

Despite the calls of apologists to the contrary, we have to have a reckoning on this. The previous President, aided by his allies, asserted broad executive powers far outside Constitutional strictures, and the results were illegal wiretapping, torture, extraordinary rendition, indefinite detention, and a series of other crimes against the state and violations practically every amendment in the Bill of Rights as well as international law. There is a school of thought that immunity is needed to uncover the truth, much of which we still do not know, but Sheldon Whitehouse disagrees.

WHITEHOUSE: I think the Speaker is absolutely right. The question of when and whether to grant immunity is a very carefully drawn one. … If you’re giving blanket immunities and preventing prosecutions that could and would and should move forward, then you’ve made a mistake.

“[T]he Speaker is dead right that you don’t want blanket immunities that prevent prosecutions from going forward,” he emphasized, “not without a very thoughtful conversation with the prosecutors themselves.”

But one member of the Judiciary Committee wasn't at the truth commission hearing yesterday - Dianne Feinstein. Through a spokesman, she sidestepped whether or not she supports a commission, saying she “hasn’t seen a proposal." But she is instituting a competing investigation, from her perch at the Senate Intelligence Committee, that is bound to be a whitewash:

The inquiry is aimed at uncovering new information on the origins of the programs as well as scrutinizing how they were executed -- including the conditions at clandestine CIA prison sites and the interrogation regimens used to break Al Qaeda suspects, according to Senate aides familiar with the investigation plans.

Officials said the inquiry was not designed to determine whether CIA officials broke laws. "The purpose here is to do fact-finding in order to learn lessons from the programs and see if there are recommendations to be made for detention and interrogations in the future," said a senior Senate aide, who like others described the plan on condition of anonymity because it had not been made public [...]

The senior aide said that the committee had no short-term plans to hold public hearings, and that it was not clear whether the panel would release its final report to the public [...]

Senate aides declined to say whether the committee would seek new testimony from former CIA Director George J. Tenet or other former top officials who were involved in the creation and management of the programs.

The Senate investigation will examine whether the detention and interrogation operations were carried out in ways that were consistent with the authorities and instructions issued in the aftermath of the Sept. 11 attacks, officials said.

The panel will also look at whether lawmakers were kept fully informed. Sen. Dianne Feinstein (D-Calif.), the chairwoman of the committee, and others have said that the Bush administration improperly withheld information from Congress on the CIA's operations.

This is basically a turf war. Feinstein wants control of the investigation process in her committee, over Patrick Leahy. And she wants the hearings to be private as well as the final report. Emptywheel writes:

Pat Leahy will have an investigation regardless of what DiFi says--and he's going to start it now. So DiFi issues a vaguely formulated leak saying that she's going to cover the CIA's role in torture. And, voila! Now the CIA and DiFi can say try to circumscribe Leahy's investigation. And of course, by doing an investigation that starts with the premise that it is "not designed to determine whether CIA officials broke laws," even while admitting that CIA officers may have gone beyond the "instructions issued in the aftermath of the Sept. 11 attacks," it ensures no accountability even for those who went beyond Cheney's torture regime. And, finally, absolutely no current plans to make public the results, either through public hearings or by releaing a report.

Call DiFi at (202) 224-3841. Thank her for recognizing the importance of understanding the mistakes we made in the past. Remind her that even Pat Roberts' investigation into CIA Iraq intelligence was released publicly. Demand that she meet at least the level of transparency adopted by her Republican predecessors as SSCI Chair.

Agreed. This is too important for it to be done in the secret bowels of official Washington as a "fact-finding mission" yielding a white paper that will wind up collecting dust on a shelf. Feinstein is trying to let criminals off the hook, plain and simple. History tells us that the inevitable return of criminals like this will only be emboldened to go further as a result.