GOP senator would support probe of 'shocking' anti-terror memos
Rachel Oswald
Published: Thursday March 5, 2009

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Update at bottom: 'Be careful what you wish for,' Leahy tells Maddow some in GOP back legal action

Sen. Arlen Specter (R-PA) said he was opposed to any Truth Commission tasked with investigating Bush administration abuses, but that he could support criminal investigations into political appointees who authored the controversial OLC memos.

Speaking at Sen. Patrick Leahy's (D-VT) Wednesday hearing on exploring the possibilities of setting up a nonpartisan Truth Commission, Specter, a moderate in his party who has supported past Senate inquiries into polices of the Bush administration, said:

“I would not mind looking backward if there’s reason to do so. If we have evidence of torture – go after it. If there’s reason to believe that these Justice Department officials have knowingly given the president cover for practices they know not to be right or sound – go after them. Some of the [OLC] opinions are more than startling, they’re shocking. If [OLC counsel] did that knowingly…it sounds to me that it may fall within criminal conduct.

Specter said he supported the Justice Department pursuing an investigation into the writing of the memos.

“They’re not going to pull any punches,” Specter said of a Justice investigation.

A key aspect still unresolved of Leahy’s proposal to set up an independent ‘Truth Commission’ with the task of examining wrongdoing by the Bush administration, is whether immunity will be offered to those who testify, and if so, what kind of immunity.

Senate Judiciary Committee Chairman Leahy’s hearing on the feasibility of setting up a nonpartisan ‘commission of inquiry’ into national security abuses over the last eight years met with strong support from a variety of sectors – civil libertarians, some corners of the military and human rights advocates.

In opening the day’s hearing before a half-full chamber room that included a dozen Guantanamo Bay protestors wearing orange prison jumpsuits, Leahy strove to create a bipartisan atmosphere.

Leahy said the commission could be imbued with subpoena powers and even the power to grant immunity to those who agree to testify. But he also warned that the commission would not rule out criminal prosecutions for witnesses who perjure themselves.

“This is a time when conservatives, liberals, Republicans and Democrats should be setting aside labels to come together foremost as Americans,” Leahy said. “We shouldn’t be afraid to look at what we’ve done and hold ourselves accountable as we do other nations when they make mistakes. Today is another opportunity to come forward and find the facts and join all of us, Republicans and Democrats, to develop a process to understand what went wrong and then to learn from it.”

But there is also significant opposition from Leahy’s Republican colleagues on the committee who contested that Congress had no business delegating responsibility to investigate Bush abuses and that no matter how ‘nonpartisan’ in name the commission was, it would still become a vehicle for Democrats to launch criminal probes into Republicans.

“The idea of creating an independent, and I’m not sure how independent it would actually be, unaccountable Truth Commission, is a bad idea with all due respect,” said Sen. John Cornyn (R-TX), a member of the Judiciary Committee. “The suggestion that this can be delved into somehow in a nonpartisan fashion asks us to suspend our powers of disbelief.”

Two of Leahy’s fellow Democrats on the Judiciary Committee gave support to the Truth Commission, though from their comments, they seem to be more interested in criminal prosecutions for high-profile Bush appointees than Leahy.

“There can be no doubt that we must fully understand the mistakes of the past to address them and to prevent them occurring in the future,” said Sen. Russ Feingold (D-WI). “Your proposal is aimed at finding the truth, not settling the score. I think a truth commission as the chairman has proposed is the best way to get the story out to the American people.”

Feingold said immunity for low-level participants of the Bush administration needed to be explored but added any Truth Commission should tread carefully in granting immunity as “there may be some cases that should be prosecuted.”

He also said that Congress should only task the commission with fact-finding and not with making any recommendations. The commission should be comprised of investigative professionals rather than partisan policymakers Feingold said.

“It is distinctly in the public interest for this information to come out,” said Sen. Sheldon Whitehouse (D-RI), adding that some conduct of Bush appointees may have been so “abhorrent” as to merit criminal investigations.

Cornyn said that any investigation into the interrogation methods of the CIA, would likely result in a more timid, agency, fearful of retroactive discipline, that would become reluctant to vigorously pursue intelligence gathering.

Frederick Schwartz, chief legal counsel of the Brennan Center for Justice and a witness in support of the Truth Commission, said he didn’t personally believe that CIA operatives, who engaged in questionable interrogation practices such as water boarding, should be criminally prosecuted or brought before the Truth Commission.

“I think they acted in good faith because they had legal opinions [backing them up], said Schwartz, referencing the recently made public Office of Legal Counsel memos that authorized radical and questionable executive powers.

Thomas Pickering, a former U.S. ambassador, testified in support of the commission, noting how it would improve American standing abroad with foreign allies and also take away propaganda power from terrorists who have used the treatment of prisoners in Guantanamo Bay and Abu Ghraib as a recruitment tool.

“We must as a country take stock of where we have been and determine what is and what is not acceptable and what we will never do again,” Pickering said. “We ought to acknowledge the mistakes that were made.”

Pickering added that the commission should not have the power to grant blanket immunity or full immunity.

Speaking against the idea of the commission, Jeremy Rabkin, a law professor at George Mason University, objected to the statements made by some far-left sectors of society that compare President Bush and his cabinet to “notorious war criminals of foreign countries.”

Rather than improving American standing abroad, Rabkin said a Truth Commission would actually legitimize these views in other countries. Countries that have held Truth Commissions in the past, such as South Africa and Chile, had to go that route because their countries were to divided and peace to fragile to handle any kind of criminal prosecution.

“Oh yes, that is what is done with war criminals when you can’t prosecute them,” Rabkin said. “I think this will be said as ratifying the background view. If people think there should be prosecutions, there can be prosecutions.”

Leahy warned that if Republicans chose to not take part in his “nonpartisan fact-finding commission,” then calls from more strident members of his party for criminal prosecutions of Bush administration appointees would only become louder and they would become more empowered in the eyes of the public, which according to a recent Gallup poll, two thirds of Americans support some type of inquiry into Bush administration abuses.

“If criminal conduct occurred, this senator wants to know about it,” Leahy said. “I’m trying to get the ability to find out if criminal conduct occurred so it won’t happen again. If crimes occurred, I don’t think they should be swept under the rug.”

The full formal testimony of Wednesday’s witnesses can be read here.

Leahy tells Maddow some Republicans back legal action

During an appearance on MSNBC's Rachel Maddow Show, Leahy said that some Republicans might back legal action against members of the Bush White House.

Leahy told Maddow that the recently released Bush anti-terror documents "makes me think of some of the ads I‘ve seen for the Frost/Nixon tapes where the actor playing President Nixon says, 'It‘s not against the law when the president does it.' Well, nobody‘s above the law in this country.'"

Politico's Andy Barr writes, "Rather than prosecuting Bush officials, the Democrat has proposed the creation of a 'truth commission' to investigate alleged wrongdoings in the waging of the war on terror. Leahy’s proposed commission would have subpoena power, but would not press criminal charges against former White House officials."

"Now, interestingly enough, some of the Republicans, in their arguments this morning, were saying, maybe prosecution is the only way you‘re going to really find out," Leahy said. "Something has been done wrong and you should have prosecution. My feeling is, be careful what you wish for. That may be what you get."

Maddow responded, "We do have a very interesting sort of convergence of right and left on the relationship of your commission idea to prosecutions. We got Nancy Pelosi and Russ Feingold and Sheldon Whitehouse and Michael Ratner from the Center for Constitutional Rights, all arguing they wouldn‘t want any offers of immunity from the commission to preclude prosecutions."

"But today, as you said, Republicans arguing against the commission, Arlen Specter, David Rivkin, former Justice Department official, both suggesting that the commission might interfere with the Justice Department‘s turf in prosecuting," Maddow continued. "Are they..."

Leahy interjected, "That‘s why I say 'be careful what you wish for' because we already have a prosecutor looking into this. If prosecution can find all the answers, that‘s fine. But I‘m just worried that it might not. That‘s why I‘m trying to find this middle ground."

But Leahy warned Republicans, "If we cannot get the kind of bipartisan support needed for a commission to get all the facts out, then it‘s going to fall back on prosecution. But I am not willing to just ignore what happened. Some have said turn the page. I say, well, let‘s read the page first before you turn it."

This video is from MSNBC's The Rachel Maddow Show, broadcast Mar. 4, 2009.

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