By Jason Leopold

Senate Judiciary Committee Chairman Patrick Leahy formally announced Wednesday that he will formally begin the process of exploring the formation of a commission to investigate controversial Bush administration’s policies, such as torture and domestic surveillance, enacted to allegedly defend the U.S. from terrorist threats.

Leahy, a Vermont Democrat, said he has scheduled a Judiciary Committee hearing for March 4, entitled to “Getting to the Truth Through a Nonpartisan Commission of Inquiry.”

The hearing, which falls on the same day the Justice Department is scheduled to file legal briefs with the U.S. Court of Appeals for the D.C. Circuit stating whether the Obama administration supports Bush’s broad claim of executive privilege, will examine the best way an independent panel can probe the Bush administration’s “national security and executive power as related to counterterrorism efforts.”

“The past can be prologue unless we set things right,” Leahy said in his floor statement Wednesday. “The last administration justified torture, presided over the abuses at Abu Ghraib, destroyed tapes of harsh interrogations, and conducted “extraordinary renditions” that sent people to countries that permit torture during interrogations.  The last administration used the Justice Department – our premier law enforcement agency – to subvert the intent of congressional statutes. They wrote secret law to give themselves legal cover for these misguided policies, policies that could not withstand scrutiny if brought to light.”

Leahy first announced his intentions to investigate Bush-era policies during a speech he gave Feb. 9 at Georgetown University’s Law Center. There, he told students that “people would be invited to come forward and share their knowledge and experiences, not for purposes of constructing criminal indictments, but to assemble the facts. If needed, such a process could involve subpoena powers, and even the authority to obtain immunity from prosecutions in order to get to the whole truth.”

During his first prime-time news conference the same day, President Barack Obama was questioned about Leahy’s proposal. Obama declined to comment, saying he was unfamiliar with it. He then reiterated his ambiguous response from the campaign, that no one is above the law but that he favored looking forward, not backward.

“What I have said is that my administration is going to operate in a way that leaves no doubt that we do not torture that we abide by the Geneva Conventions and that we observe our traditions of rule of law and due process as we are vigorously going after terrorists that can do us harm,” Obama said at his first prime-time news conference as President.

“My view is also that nobody is above the law, and if there are clear instances of wrongdoing than people should be prosecuted just like any ordinary citizen. But generally speaking I am more interested in looking forward than I am in looking backwards.”

Leahy said he has, however, entered into discussions with the White House, presumably to gain their support. He said he also has started speaking with other members of Congress and outside experts. Last month, Leahy’s counterpart in the House, Rep. John Conyers, sponsored similar legislation to create a blue-ribbon panel of outside experts to probe the “broad range” of policies pursued by the Bush administration “under claims of unreviewable war powers.”

Leahy’s announcement is expected to be followed in the weeks ahead by several critical documents on the Bush administration’s interrogation practices and the legal work done to justify it. Sen. Carl Levin, the chairman of the Senate Armed Services Committee, will release a voluminous, declassified report shedding additional light on the military’s role in harsh interrogations. The Justice Department is expected to release a declassified summary of a four-year long investigation into the genesis of torture memos, and a special prosecutor will soon release the findings of year-long probe into the destruction of videotapes that showed alleged terrorist detainees being waterboarded.

Before leaving office, President George W. Bush and Vice President Dick Cheney admitted in several interviews that they both authorized the waterboarding of at least three detainees held at Guantanamo Bay and the harsh interrogations of 33 other prisoners. Earlier this month, newly declassified Defense Department documents showed that in December 2002 – as the Bush administration was ratcheting up its harsh questioning of detainees – several captives died from “abusive” treatment at the hands of U.S. military interrogators in Afghanistan.

Leahy singled out Cheney’s comments Wednesday, saying that the former vice president “continues to assert unilaterally that the Bush administration’s tactics, including torture, were appropriate and effective, But interested parties’ characterizations and self-serving conclusions are not facts and are not the unadulterated truth.”

Following Leahy’s address to his Senate colleagues, Sen. Sheldon Whitehouse, D-R.I., who has spent more than a year calling for an independent investigation of the Bush administration’s torture policies, spoke in support of Leahy’s proposal and excoriated the Bush administration for the “wreckage” it left behind.

“The Bush Administration left our country deeply in debt, bleeding jobs overseas, our financial institutions rotten and weakened, an economy in free fall,” Whitehouse said in a speech on the Senate floor. “This is the wreckage we see everywhere, in shuttered plants – as my colleague from Pennsylvania sees at home so cruelly – in long lines, and in worried faces.
 
“But there is also damage that we cannot see so well, the damage below the waterline of our democracy – damage caused, I believe, by a systematic effort to twist policy to suit political ends; to substitute ideology for science, fact, and law; and to misuse instruments of power….The path back from the dark side may lead us down some unfamiliar valleys of remorse and repugnance before we can return to the light.

“We may have to face our fellow Americans saying to us, ‘No, please, tell us that we did not do that, tell us that Americans did not do that’ – and we will have to explain, somehow. This is no small thing, and not easy; this will not be comfortable or proud; but somehow it must be done.
 
A Gallup poll released earlier this month found majorities supporting either criminal or fact-finding investigations. For instance, on torture, 38 percent favored a criminal investigation while 24 percent favored an investigation by an independent panel. Thirty-four percent of those polled said they did not support additional investigation.  

The findings would appear to undercut the claims of many Republican and even some Democrats that the public lacks the appetite to look into Bush administration abuses.

Still, some progressives and others on the left believe are not supportive of Leahy’s proposal for a ‘truth commission” because it’s goal does not appear to hold accountable high-level Bush administration officials who may have committed war crimes or broke other laws in the name of national security.

On Tuesday, David Swanson of afterdowningstreet.org circulated a petition demanding Attorney General Eric Holder appoint a special prosecutor to launch a criminal investigation into the Bush administration. The petition has been signed by human rights and civil liberties organizations, the media (including The Public Record), and former intelligence officials.

The petition says that there is “no need to wait for the recommendations of a panel or “truth” commission when substantial evidence of the crimes is already in the public domain. We believe the most effective investigation can be conducted by a prosecutor, and we believe such an investigation should begin immediately.”

The American Civil Liberties Union, in a statement released Wednesday shortly after Leahy’s announcement, agreed with Swanson’s calls for a special prosecutor to investigate the Bush administration.

Additionally, the ACLU said it would like to see a congressional select committee should be also be formed, and the executive branch should examine whether prosecutions are appropriate through a Department of Justice special prosecutor.
 
“We also call on Congress to establish a select committee and for the Justice Department to appoint a special prosecutor,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “Both the Obama administration and Congress have an obligation to conduct investigations in order to achieve accountability and to ensure these egregious errors will not happen again. In order for America to move forward and put torture and abuse behind us, we must know how our nation was led astray.”

Leahy said he’s aware “many are focused on whether crimes were committed” but, Leahy said, he believes “it is just as important to learn if significant mistakes were made, regardless of whether they can be proven beyond a reasonable doubt to a unanimous jury to be criminal conduct.  

“We compound the serious mistakes already made if we limit our inquiry to criminal investigations and trials,” Leahy said. “Moreover, it is easier for prosecutors to net those far down the ladder than those at the top who set the tone and the policies.  We do not yet know the full extent of our government’s actions in these areas, and we must be sure that an independent review goes beyond the question of whether crimes were committed, to the equally important assessment of whether mistakes were made so we may endeavor not to repeat them. As I have said, we must read the page before we turn it.”