Meeting with my Congressman: Holding the Bush Administration Responsible for their Crimes

[Time for change]

Tomorrow I will be meeting with the staff of my Congressman, Chris Van Hollen, as part of a three-person delegation sponsored by Amnesty International, to request that Van Hollen support measures to investigate and hold the Bush administration responsible for their crimes. The first part of my prepared remarks is a general discussion of the need for more investigation into this issue. The second part is focused on the need to maintain the rule of law and hold high level criminals accountable for their crimes, lest anyone interpret the request for investigations as a substitute for prosecutions:

The need for investigations into Bush administration crimes

Our country has recently suffered through eight years of the most lawless presidential administration in our history. Most important, our president saw fit to declare that the Geneva Conventions no longer applied to his prisoners. That decision not only went far towards destroying the foundations of international law, but it also led to repeated violations of U.S. law and our Constitution.

From that decision, a long series of horrors was unleashed, including torture and the indefinite detention of thousands of men and boys, who were stripped of all their human rights, including their right to challenge their detention in a court of law. Though the Bush administration, with the assistance of our national news media, minimized the extent and severity of those policies, a glimpse of their horrors is provided to us by a 2005 research study, sponsored by the ACLU, which analyzed 44 autopsies of men who died in our detention facilities, and identified 21 of those 44 deaths as homicides.

So, why do we urge the creation of a commission to investigate the Bush administration crimes if we already know about these things?

First of all, too many Americans do not know about them. These crimes have been given way too little attention by our national news media over the past 8 years. The creation of a commission to investigate them would provide much needed attention to some of the worst crimes committed by the U.S. government in our history.

Secondly, it seems highly likely that a vigorous investigation of these things would turn up new revelations that could go a long way towards explaining how and why our country arrived at this sad state of affairs.

We as a nation need to understand how and why this all happened. We owe it to future generations to get to the bottom of this sordid story, so that we can take steps to ensure that it does not happen again.

The need to hold perpetrators accountable for their crimes and uphold the rule of law

Finally, it is essential to hold those responsible for these crimes accountable for their actions. If we fail to do that we essentially condone them. That would send a terrible signal to future government leaders and to the American people. Essentially, we would be signaling that such crimes are not very serious and that they may be committed with impunity – as long as the perpetrators are high enough up in the food chain. If we allow this to pass, we should not be surprised to see it happen again in the not distant future. For that reason, we want to make it absolutely clear that in recommending the creation of a commission of inquiry we do not see it as a substitute for prosecutions of the guilty, but rather as an accompaniment to them.

President Obama has spoken of the need to “look towards the future”. I agree with that. But we cannot look towards the future by ignoring the past and by condoning heinous crimes committed by the highest officials in our government. With that kind of attitude we may as well empty our prisons of all their murderers, on the rationalization that their crimes were committed in the past, and we need to look towards the future instead. Who would accept such a decision?

In a democracy our government officials are supposed to serve us, not the other way around. Why should we tolerate crimes of our government leaders that we wouldn’t tolerate of anyone else? The American people deserve to know what their leaders do in our name, and we deserve accountability from them.

Lastly, I’d like to end with a quote from Dawn Johnsen, President Obama’s choice to head the Office of Legal Counsel at the Justice Department:

“We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure.”

The need to emerge from the shadow of Bush administration crimes

The other two members of our delegation feel almost exactly the same way that I do about this.

In addition to expanding on some of my points, the delegation member who follows me (who has not yet given me permission to use her name) will emphasize the point that these investigations are further needed in order to address current national policies. Here are excerpts from her remarks:

An investigation is needed to make clear the violations of the past that are framing the understanding of what is legal and illegal, moral and immoral, justifiable and criminal today. It is needed to allow for even the hope of a new course of action concerning torture, domestic spying, and civil and human liberties from this democrat-majority congress and new executive leader. As a member of Amnesty International who has spent the last 8 years vigorously pursuing every line to end torture… I have received little reassurance from the Obama administration or the congressional body that these actions will not continue.

That is why I ask that Congressman Van Hollen support HR 104 (John Conyers’ resolution), as 29 of his colleagues have already done. Supporting HR 104 would represent the majority of Americans who according to a February Gallup poll favor nearly 2 to 1 a criminal investigation or independent panel on the use of torture. This investigation must… make recommendations for changes to the actions we take in the name of national security… We can have little hope of undoing those arguments and addressing the actions that followed if we refuse to investigate.

The American people can expect no protections of their constitutional rights and domestic and international law as long as laws which should never have been passed in the first place are upheld by our congressional representatives. This establishes a seemingly natural state under which formerly illegal actions continue, under the illegal protection of laws that violate our constitutional rights and international law.

An investigation is necessary to expose the widespread violations of international laws banning torture, extraordinary rendition, and arbitrary/indefinite detention that were violated during the past 8 years, and to what extent those violations are becoming the norm under this administration.

We must have a full accounting of the past in order to remedy the present move into the future with clean hands

Without an investigation, there is no reason to believe such actions ended with the changing of the sheets from George Bush’s to Barack Obama’s bed in the White House. President Bush said that the United States does not torture. President Obama has said that the United States will not torture. We know for a fact that one of them (Bush) lied. An investigation would provide better assurance of the truth of Obama’s statement than blind trust: Did the United States torture? Does it still? How will we prevent it in the future? Actions taken in the first 100 days of the Obama administration have led many to believe – and some victims to outright accuse – that things are getting worse, not better under our new leader. A nonpartisan investigation gives the American people the best understanding of the truth in these matters – and our leaders the best hope for new actions and understanding in the future.

Most troubling is the extent to which actions are being taken under the new administration – with seeming approval from a new, Democrat-led house and congress – to prevent any investigation (or prosecutions) of those who we know violated the law… We know that violations have occurred. We have detainees whose rights are continuingly being asserted in our judicial courts, but denied by our executive powers – and ignored by our legislative branch. That did not end on January 20th. Why should we believe that it will not continue? …

I do not accept the justification of state secrets for refusals to release the documentation of illegal actions. I do not accept the argument that looking ahead will amend the wrongs of the past that continue to frame the actions of today, and the hopes of tomorrow. Without an investigation, the American people remain in the dark, threatened by an executive branch with ever-expanding powers and a complicit legislative branch of representatives who violate daily their oaths to uphold the constitution and serve the American people… I do not believe that end has yet come. Actions must be taken to ensure the rule of law in these matters is upheld, or violations will continue.

Some of this could be taken as a criticism of the Obama administration – but it is really not meant to be personally directed at anyone. I have noted before that our presidents may have considerably less power than we ascribe to them. Adlai Stevenson, former two-time Democratic nominee for President, and Ambassador to the United Nations in the Kennedy administration, made that point, when he said privately that Kennedy would never be allowed to establish diplomatic dialogue with Castro (as he intended) because “Unfortunately, the CIA is still in charge of Cuba”.

So, if President Obama really wants to proceed with criminal prosecutions but feels unable to do so for whatever reasons, we would be greatly helping him out by putting pressure on him to do so.


Ensuring that we do not become a totalitarian state

Lastly, Paul Grenier (who has written some interesting things about the 9/11 investigations) will discuss how under the Bush administration we were moving towards being a totalitarian state, and why we may still move in that direction if we don’t address our past. He does that especially by comparing the legal system of the former Soviet Union to that under the Bush administration:

A commission is necessary to establish the truth. Prosecution is necessary to discourage the repetition of the same crimes in the future and for the sake of justice. Full transparency is necessary, among other reasons, to assure us that similar crimes are not still continuing today (under new names and guises), and also to establish the full truth. Action on all these fronts is urgent, moreover, if we would preserve our identity as a nation under the rule of law.

Incredibly, despite the unprecedented unconstitutionality of recent government behavior, such an agenda is far from being vigorously promoted in the White House or in the halls of Congress. Excuses are made that we should ‘look to the future.’ It is as if the practices of recent years were, in the end, no very big deal. But these practices – which have yet to be fully renounced – were and are a very big deal. They are the practices of a totalitarian state….

A comparison of the rule of law in the former Soviet Union with that of the Bush administration

A number of characteristic features of the Soviet system clearly marked it as a nation which flagrantly violated the most basic principles of the rule of law. For example, under the Soviet system, individuals could be detained and mistreated indefinitely on the mere say so of the nation’s chief executive. All that was needed was for the government to declare, without any evidence presented in a fair and open court proceeding, that someone was an ‘enemy of the people.’

Under the rule of law, by contrast, attaching a label to a person is insufficient grounds to deny said person access to the protection of the law.

Under the Bush administration, numerous individuals have been swept up, imprisoned indefinitely, tortured by the CIA directly or rendered to third countries for detention and torture, on the sole basis that the executive branch defined these persons as ‘unlawful enemy combatants’ or ‘terrorists.’ It is no secret that many of these persons later turned out to be innocent of any and all criminal action or even intent.

The use of sleep deprivation and waterboarding are typical practices of totalitarian regimes. It is well known that the virtue of these techniques, from the point of view of totalitarian states, is their effectiveness in extracting false confessions. For example, as was pointed out by Vladimir Bukovksy, the Soviet human rights defender and celebrated pro-democracy dissident, it was precisely sleep deprivation that was used by Stalin’s NKVD to produce false confessions during the famous ‘show trials’ of the 1930s.

The Bush administration made use of both water-boarding and prolonged sleep deprivation – up to eleven days – while interrogating detainees. These interrogations are known for a fact to have produced false, though often convenient, information – including information which was used to justify the US invasion of Iraq…

On the need for an independent commission of inquiry

I hope that it is apparent from the above remarks that we see an independent commission of inquiry as complementary to, not as a substitute for, criminal prosecutions of those suspected of crimes. But they are necessary nonetheless. Criminal prosecutions are focused narrowly on determining the guilt or innocence of the accused. They do not address broader issues of how to revise our system of law in order to prevent future violations of the kind that we endured under the Bush administration. Our problems are of such magnitude that punishing the guilty is not enough (alone) to get our country back on track. For example, during the Bush administration our Republican Congress (with help from a minority of Democrats) passed the Military Commissions Act of 2006, which expanded presidential powers to unconstitutional levels and tainted our nation with characteristics of totalitarianism.

In addition, we need to consider the very real possibility that the Obama administration at this time has no intention of moving forward with criminal prosecutions. If that is the case, then one potential means of persuading it to proceed with prosecutions would be to establish a high profile independent commission of inquiry that publicly reveals information that leaves the Obama administration little choice in the matter. Is there a chance that it would fail to do that? Sure. Maybe it’s even likely that it would fail to do that. But that’s no reason not to try.

If I had my choice between a commission of inquiry or criminal prosecutions, I would choose the latter. But that is not my choice to make. I have previously written Attorney General Holder, who has that responsibility, to urge him to undertake criminal prosecutions of Bush administration officials who may have committed serious crimes. I cannot lobby Congress to do that because it is not their responsibility. They don’t have the power to prosecute criminals. They can only undertake investigations or appoint others to investigate. In my letter to Holder I spoke of the Obama administration’s stance of “look forward as opposed to looking backward” as a reason to forego criminal prosecutions. I wrote:

What if we were to take that attitude towards common criminals – say murderers and rapists, for example? What if a prosecuting attorney was to say about the prosecution of a murderer/rapist, "Rather than vengeance, we need a fair-minded pursuit of what actually happened -- so let's forget about prosecuting and just focus on getting to the truth"? Does anybody seriously believe that such an approach would act as a deterrent to murder and rape? Any prosecuting attorney who suggested such a thing would be looking for a new job very soon.

So why should we take such a radically different approach to the crimes of the Bush administration? Why should anyone think that merely establishing the truth of what happened would act as a deterrent to further occurrences, if the establishment of that truth did not lead to prosecutions of the guilty parties?

We also intend to stress that that a commission of inquiry needs to be truly INDEPENDENT and staffed at the highest levels by internationally acknowledged, independent experts on humanitarian law and practice.

Wish us luck, and please feel free to use any ideas in this post in discussion or correspondence with your Congresspersons.