Michael Isikoff at Newsweek reports that the Obama people are considering a 9/11 style torture commission, in lieu of any actual prosecutions:
Despite the hopes of many human-rights advocates, the new Obama Justice Department is not likely to launch major new criminal probes of harsh interrogations and other alleged abuses by the Bush administration. But one idea that has currency among some top Obama advisers is setting up a 9/11-style commission that would investigate counterterrorism policies and make public as many details as possible. "At a minimum, the American people have to be able to see and judge what happened," said one senior adviser, who asked not to be identified talking about policy matters. The commission would be empowered to order the U.S. intelligence agencies to open their files for review and question senior officials who approved "waterboarding" and other controversial practices.
Obama aides are wary of taking any steps that would smack of political retribution. That's one reason they are reluctant to see high-profile investigations by the Democratic-controlled Congress or to greenlight a broad Justice inquiry (absent specific new evidence of wrongdoing). "If there was any effort to have war-crimes prosecutions of the Bush administration, you'd instantly destroy whatever hopes you have of bipartisanship," said Robert Litt, a former Justice criminal division chief during the Clinton administration. A new commission, on the other hand, could emulate the bipartisan tone set by Tom Kean and Lee Hamilton in investigating the 9/11 attacks. The 9/11 panel was created by Congress. An alternative model, floated by human-rights lawyer Scott Horton, would be a presidential commission similar to the one appointed by Gerald Ford in 1975 and headed by Nelson Rockefeller that investigated cold-war abuses by the CIA.
It's sort of mindboggling to me that we eschew prosecutions of powerful people for committing crimes because doing so would inflame the pearl-clutching sensibility of the people who enabled those crimes. Others have made this argument before, but what we basically have is a system of justice that is based less on laws than on an evaluation of how the social and political power of a given target might influence the perception of the prosecution. Via Yglesias, Kevin Drum suggests that immunity from prosecution might allow us to know more of what actually happened:
So in the end, perhaps we'll get half of a Truth and Reconciliation commission: we'll get the truth, but not the reconciliation, since I doubt that any of the perpetrators of this stuff are inclined to show the slightest remorse for what they did. I suppose that here in the real world this might be the most we can expect, but I don't have to like it. And I don't.
I should add that it seems unlikely that Obama would set up a commission to investigate behavior that he intends to continue. That said, the Church Commission established the need for government authorities to secure a court order for surveillance purposes in 1978. Thirty years later, that's gone. The frightening thing about this debate over torture is that, given that it's been established as policy and has some popular support, not to mention support from government insiders, it's possible we may be having this debate indefinitely, even if everything comes to light.
-- A. Serwer
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