A Piecemeal Approach to Undoing Bush's Wrongs

The liberal post-Bush fantasy involves Watergate-style, months-long congressional hearings on the recently departed administration's illicit activities, exposing the criminality of warrantless wiretapping, torture, rendition, and other programs. Except that President Barack Obama has already said he wants to move on. "We need to look forward as opposed to looking backward," he told George Stephanopoulous in January on This Week. After all, the president and Congress have an economic meltdown on their hands.

So no Watergate-style drama -- at least that scenario is unlikely. Yet Americans may still have a chance to scrutinize Bush administration policies through a series of congressional hearings. Rather than a full-scale examination, Congress is likely to investigate Bush-era policies on a piecemeal basis. This approach may not have the same intensity as a series of hearings broadcast nightly on network television, but it could still have interesting, and important, results.

Here is what is likely to unfold in the coming months:

A re-evaluation of the PATRIOT Act. Several provisions of the USA PATRIOT Act, including one that allows FBI agents to examine records kept at public libraries, will expire this year. If Congress wants to renew these provisions, it will need to look carefully at how these laws have been enforced. Members of Congress, such as Sen. Dick Durbin of Illinois, have been vocal in their criticism of the law's practical effects and may call for hearings.

Revelations about warrantless wiretapping. The Inspector General offices in the Justice Department and in the National Security Agency are scheduled to file a joint report on the wiretapping program in June. The findings of the report may prompt congressional hearings, especially since John Conyers, a Michigan Democrat and chairman of the House Judiciary Committee, has shown an interest in holding former administration officials accountable for illegal wiretapping and other offenses. (Conyers has, for example, called for an extension of the time period during which officials may be prosecuted.) On the Senate side, Patrick Leahy, chairman of the Judiciary Committee, said he would like to convene a commission to investigate alleged crimes.

Scrutiny of the "state secrets" defense. Obama administration lawyers have used the state-secrets defense -- claiming that revealing privileged information would endanger national security -- in an appeals court. (In the case, several individuals had filed a rendition lawsuit, claiming that CIA officials transported them on a Boeing subsidiary jet to another country where they were mistreated.) It was not clear whether the use of the state-secrets defense was a sign that current administration lawyers plan to continue this legal approach or whether the lawyers "just couldn't change course in time," say Caroline Fredrickson, director of the Washington legislative office of the American Civil Liberties Union. Members of Congress, including Sen. Patrick Leahy of Vermont, may decide to convene hearings on issues involving the state-secrets defense, as well as rendition and related matters, in the coming months.

Starting in May, people who are interested in examining Bush-era policies can turn to The Accountability Papers, a database created by the Center on Law and Security at New York University Law School. The project will catalog congressional inquiries into detention, torture, and other issues. [Disclosure: I am a former research fellow at the Center.]

And, finally, some civil-rights experts believe that Watergate-style hearings may not even be the best model for a full-scale investigation. The ACLU's Fredrickson says that the ideal precursor is the Church Committee, which was created by the Senate in 1975 to investigate abuses by the intelligence community. "The Church Committee didn't just put out a compilation of testimony," Fredrickson says. "It made a series of recommendations. That's what we would expect."

Members of the Church Committee produced 14 reports on intelligence agencies and revealed that government officials had engaged in a series of covert actions as well as compiled data on 1.5 million potentially "subversive" Americans. Congressional hearings to investigate the Bush-era policies, whether the hearings focus on specific pieces of legislation or provide an overview of national-security issues, would, Fredrickson believes, serve the same purpose: "That means making sure that the American public has an understanding of what went on with the unlawful spying and torture so that they will not permit a future administration to engage in such activities."

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