Allison Kilkenny: Unreported

The Law is Not a Fringe Issue

Posted in Barack Obama, Bush, law, politics, torture, war crimes by allisonkilkenny on April 30, 2009

abu-ghraib-torture-715244Barbara Herbert, a course director at Tufts University School of Medicine, made a short, but compelling plea in today’s New York Times. Herbert argued that the United States government should convene a truth and reconciliation commission, using the one in South Africa as a model, to investigate into possible crimes committed by the Bush administration. 

Such a commission would allow a nation to (a) find the truth of what happened from multiple perspectives, (b) develop an understanding of how it happened and (c) heal.

A commission isn’t some kind of partisan booby trap thrown together in a frenzied quest for retribution as Harry Reid suggested last week. The formation of a nonpartisan commission also wouldn’t  act as a nefarious tool to dismantle the foundation of The American Way (corrupting the sweet “mysteries” of life,) as Bush apologists like Peggy Noonan claim

A truth commission would use the law as a compass, and its only goal would be to restore order in America. As Herbert wrote, “We need a chance for secular redemption and healing.”

On Tuesday, Jeremy Scahill reported that Rep. John Conyers, chair of the House Judiciary Committee, and Rep. Jerrold Nadler wrote to Attorney General Eric Holder officially requesting  the appointment of an independent Special Prosecutor to “to investigate and, where appropriate, prosecute torture committed against detainees during the Bush administration.” In order to restore credibility to the Justice Department, Holder must adhere to the rule of law, and not partisan demands. He must investigate into possible crimes committed under the Bush administration.

The law is not a fringe issue. Progressives may be the ones demanding an investigative commission, but the issue at stake here is the law itself. That’s not a partisan issue. The law should be sacred to all Americans: Republicans and Democrats. And if Democrats are proven to have been complicit in torture, then they too must be punished according to the law. 

Otherwise, Americans will learn only one lesson: the law does not apply to our leaders. What a terrible lesson to teach young Americans.

To Investigate or Not: Four Ways to Look Back at Bush

Posted in Barack Obama, politics, torture, war crimes by allisonkilkenny on February 22, 2009

New York Times

POISON DARTS Senator Frank Church, whose committee looked into intelligence abuses, shows a dart gun from a C.I.A. lab in 1975. (Henry Griffin/AP)

POISON DARTS Senator Frank Church, whose committee looked into intelligence abuses, shows a dart gun from a C.I.A. lab in 1975. (Henry Griffin/AP)

WASHINGTON — Two days after his re-election in 1864, with Union victory in the Civil War assured, Abraham Lincoln stood at a White House window to address a boisterous crowd of supporters. He spoke of the lessons of the nation’s calamitous recent history.

“In any future great national trial, compared with the men of this, we shall have as weak and as strong; as silly and as wise; as bad and as good,” Lincoln said. “Let us, therefore, study the incidents of this as philosophy to learn wisdom from, and none of them as wrongs to be revenged.”

Today there are new calls for such study, not universal but certainly loud enough, directed this time at the Bush administration’s campaign against terrorism. Interrogation techniques that the United States had long condemned as torture, secret prisons beyond the reach of American law and eavesdropping on American soil without court warrants are at the top of a lot of lists.

But as Lincoln knew, one man’s wisdom is another’s vengeance. Repeatedly in American history, and in “truth commissions” in some two dozen countries from Argentina to Zimbabwe since the 1980s, it has turned out to be a tricky business to turn the ferocious politics of recent events into the dispassionate stuff of justice and the rule of law.

A USA Today/Gallup poll this month found that 62 percent of Americans favor either a criminal investigation or an independent panel to look into allegations of torture. Still, many people, primarily Republicans, insist the Bush policies were vital to protect the country, and the Obama administration is treading gingerly. When Senator Patrick J. Leahy of Vermont, the Democratic chairman of the Judiciary Committee, proposed a commission to investigate torture and eavesdropping, President Obama didn’t embrace the idea.

Already grappling with two wars and an economic meltdown, Mr. Obama said he was “more interested in looking forward than I am in looking backwards.” But the door was ajar; he also declared that “nobody is above the law.”

Mr. Leahy is undeterred. In an interview, he laughed and described the president’s remarks as “an enthusiastic endorsement.” He said he would work to build support for the idea in Congress.

As a senator under seven presidents, Mr. Leahy said, he has learned that the temptation to abuse powers in a crisis is bipartisan, and the commission’s review should include the role of Democrats in Congress in approving the Bush policies. The work should be done in one year, he added, to avert accusations that it was being dragged out for political gain.

Mr. Obama’s most enthusiastic supporters remain passionate about “looking backwards,” arguing that the Bush policies darkened the United States’ reputation, to Al Qaeda’s benefit. They include Representative John Conyers of Michigan, the House Judiciary chairman, who has sponsored a bill to set up an investigative panel.

Many Republicans, however, say the lofty appeals to justice and history mask an unseemly and dangerous drive to pillory the Bush administration and hamstring the intelligence agencies.

That was precisely the view of an aide in Gerald Ford’s White House named Dick Cheney when a Senate committee led by Frank Church of Idaho looked into intelligence abuses in the mid-1970s. A quarter-century later, as vice president, Mr. Cheney would effectively wreak vengeance on that committee’s legacy, encouraging the National Security Agency to bypass the warrant requirement the committee had proposed and unleashing the Central Intelligence Agency he felt the committee had shackled.

If advocates of looking back have their way, what are the options? Some past inquiries offer models, each with different potential winners and losers.

A CRIMINAL INVESTIGATION (IRAN-CONTRA)

Attorney General Eric H. Holder Jr. said at his confirmation hearing that he, like Mr. Obama, did not want to “criminalize policy differences” by punishing officials for acts they believed were legal. The same language was used in 1992 by President George H. W. Bush when he pardoned six officials charged in the Iran-contra investigation. Mr. Bush called the charges “a profoundly troubling development in the history of our country: the criminalization of policy differences.”

The Iran-contra case illustrates the obstacles to any prosecution that unfolds in a polarized political atmosphere. An independent prosecutor, Lawrence E. Walsh, worked for six years to untangle shady arms deals, defiance of Congress and a cover-up. But because of the pardons and court rulings, the key figures escaped all punishment except large legal fees and damaged reputations.

The sharpest critics of the Bush programs insist that only prosecution can restore the law to its proper place. They note that some 100 terrorism suspects have died in American custody and say a prosecution for conspiracy to torture could target both the high-level officials who approved the likes of waterboarding and lawyers who justified it.

But many legal experts believe that the Justice Department would be hard pressed to prosecute as torture methods that the department itself declared in 2002 not to be torture. And if an important goal is to determine who devised the policies, a push to prosecute might only persuade past officials to lawyer up and clam up.

A CONGRESSIONAL INVESTIGATION (CHURCH)

If there is a close precedent for the investigation now being debated, it is the inquiry led by Senator Church in 1975-76, which recorded in stunning detail some of the darkest chapters in American history. Its reports chronicled the C.I.A.’s bumbling attempts to assassinate foreign leaders; the N.S.A.’s watchlisting of civil rights and antiwar activists; and the F.B.I.’s campaign to drive the Rev. Dr. Martin Luther King Jr. to suicide.

The reports led directly to a series of reforms, including President Ford’s ban on assassinations, the creation of the Foreign Intelligence Surveillance Court to approve national-security eavesdropping and the establishment of Congressional oversight of the intelligence agencies.

But some Republicans saw Mr. Church as a showboat and his committee as overreaching. To Mr. Cheney, the Church legacy was a regrettable pruning of the president’s powers to protect the country — powers he and Bush administration lawyers reasserted after the Sept. 11, 2001, attacks.

A BLUE-RIBBON PANEL (9/11 COMMISSION)

Though Mr. Leahy praised the Church Committee, his own proposal would take the investigation away from Congress in favor of “a group of people universally recommended as fair minded.” He also suggested subpoena power and, perhaps most important, a South Africa-style trade-off: immunity for officials who testify truthfully.

Investigative commissions date at least to 1794, when George Washington used one to negotiate a settlement of the Whiskey Rebellion. The 9/11 commission, a recent example, largely overcame partisanship and drew generally positive reviews.

A commission would free Congress to focus on current problems, including the economic crisis. And promises of immunity might answer concerns expressed last month by the departing C.I.A. director, Michael V. Hayden — that any investigation would discourage intelligence officers from acting boldly for fear of later second-guessing.

DOING NOTHING

Or more accurately, finishing up and rolling out the inquiries already under way. Even if the push for a broad investigation loses momentum, the Bush programs will not soon be forgotten. Among major inquiries expected to conclude soon: a report from the Justice Department’s ethics office on legal opinions justifying harsh interrogations; the criminal investigation of the C.I.A.’s destruction of interrogation videotapes; and a report by the Justice Department inspector general on the N.S.A.’s warrantless eavesdropping.

Meanwhile, thousands of documents relating to secrets of the Bush years are being sought by journalists and advocates. Mr. Obama has directed agencies to lean strongly toward disclosure.

Frederick A. O. Schwarz Jr., who served as chief counsel for the Church Committee and has called for a new commission, said there is no telling what a thorough investigation may turn up. He recalled his shock as he sat in a secure room at the C.I.A. in 1975 and read that the agency had recruited the Mafia in a scheme to kill Fidel Castro.

“It may seem that we already know a lot,” Mr. Schwarz said. “But based on my experience, I’m certain there’s a lot that went on the last eight years that we still don’t know.”

Obama Seeks Delay in Deciding on Rove Subpoena

Posted in Barack Obama, politics by allisonkilkenny on February 17, 2009

McClatchy

rove_obamaWASHINGTON — The Obama administration is asking for two more weeks to weigh in on whether former Bush White House officials must testify before Congress about the firings of nine U.S. attorneys.

The request comes after an attorney for former Bush political adviser Karl Rove asked the White House to referee his clash with the House of Representatives over Bush’s claim of executive privilege in the matter.

House Judiciary Committee Chairman John Conyers, D-Mich., has issued a subpoena requiring Rove to appear next Monday to testify about the firings and other allegations that the Bush White House let politics interfere with the operations of the Justice Department.

Michael Hertz, the acting assistant attorney general, said in a court brief released Monday that negotiations were ongoing.

“The inauguration of a new president has altered the dynamics of this case and created new opportunities for compromise rather than litigation,” Hertz wrote in the brief dated Friday. “At the same time, there is now an additional interested party — the former president — whose views should be considered.”

Members of the committee have been seeking the testimony of Rove and former White House Counsel Harriet Miers since the spring of 2007.

Last July, a federal judge in Washington agreed with the House that Miers didn’t have the right to ignore a subpoena from Congress. District Judge John D. Bates’ 93-page ruling was considered a significant setback for the administration, which had asserted a broad executive-privilege claim that would have protected Miers from appearing.

The U.S. Court of Appeals for the District of Columbia Circuit later delayed the effect of the ruling until after the November elections.

Since then, Rove’s attorney has indicated that his client would be willing to testify about his role in the prosecution and conviction of former Democratic Alabama Gov. Don Siegelman on bribery charges. Democrats want Rove to testify about the matter because they suspect that he instigated the prosecution.

However, Democrats also insist that Rove should be made to testify about the firings of the nine U.S. attorneys.

Meanwhile, a special prosecutor is investigating what role White House officials had in the firings and whether their involvement constituted a crime.

Rove Not Covered By Executive Privilege

Posted in politics by allisonkilkenny on February 16, 2009

Raw Story

roveLawyer: Rove won’t take the Fifth if he testifies

Representatives of the Bush White House are no longer advising former White House Deputy Chief of Staff Karl Rove that he is protected by executive privilege as regards testimony about the alleged political prosecution of an Alabama governor.

In an exchange with Raw Story, Rove’s Washington, D.C. attorney, Robert Luskin, also said Rove won’t invoke his Fifth Amendment right to protect himself from self-incrimination, if and when he testifies about the firing of nine US Attorneys and the prosecution of the former governor.

There’s “been speculation that he would decline to answer questions on Fifth Amendment grounds,” Luskin said. “That’s a personal privilege; he will not assert it.”

Asked if he had a comment on Sen. Patrick Leahy’s (D-VT) proposed “truth commission,” in which Bush officials would be offered immunity in exchange for testimony, Luskin said, “No.”

Last year, the House Judiciary Committee subpoenaed Rove to testify about his knowledge concerning the prosecution of former Democratic Alabama Gov. Don Siegelman, which they alleged was carried out on political grounds after a whistleblower said Rove had a hand in seeking the prosecution. In 2007, Rove was subpoenaed by the Senate about the firing of nine US Attorneys. 

Both times, the Bush Administration asserted that Rove was protected by executive privilege; both times, Rove did not appear. Now, with a newly-installed Democratic president, the ice under Rove appears to have thinned.

Rove was subpoenaed in January and again last week by House Judiciary Chairman John Conyers, Jr. (D-MI). He has been told to appear Feb. 23 for a congressional deposition.

Though it remains unclear what form Rove’s cooperation with Congress and Justice Department investigators – who continue to probe the US Attorney firings and the Siegelman case – might take, it seems increasingly likely that Rove will testify to Congress in some way. Luskin said last Thursday that no agreement had yet been reached with the committee.

Last year, Rove offered to speak in private to House Judiciary Committee investigators about the Siegelman case. He has said repeatedly that he had no involvement in the corruption prosecution mounted by a Bush-appointed US Attorney that critics say was motivated by politics. He refused, however, to testify under oath or in public, and the Committee balked. 

Luskin says Rove’s previous stance was based on advice from the Bush White House but that Bush representatives are no longer advising him on the matter.

“The only basis that Rove has ever declined to appear has been the White House claim of immunity for senior advisors to the president and executive privilege,” Luskin said. “I do think that it’s clearer now that the Siegelman matter falls outside the scope of the former claim and, on that basis, I offered to have Rove appear on this matter.”

“Previously, as to the Siegelman matter, the White House was involved in the discussions about what form Rove’s cooperation might take, hence the discussions about interviews, not public testimony, et cetera,” he said in an earlier exchange. “Rove’s most recent guidance from the White House did not express any limitations.”

Today, “I do not think there are any limitations on potential testimony about Siegelman,” Luskin added. “The circumstances – public testimony, deposition, under oath or not – would be up to the committee.”

That said, Luskin refused to commit his client to testifying publicly or under oath. 

“My circumspection now about what form Rove’s cooperation might take regarding Siegelman comes from a desire not to say anything publicly that might prejudice opportunities to reach a constructive resolution with the committee,” he said. “Rove is already on the record regarding the Siegelman allegations – they are wholly without merit – and he would obviously like to put this to rest.”

He added, “We’re continuing to engage in constructive discussions with the committee to that end, and I’d hesitate to speculate about what form Rove’s cooperation might ultimately take.”

A House Judiciary Committee spokesman declined to comment. The Committee wrote in a letter to Luskin last week that they wouldn’t accept testimony on Siegelman alone, saying that witnesses didn’t get to dictate terms.

Siegelman was convicted in 2006 on bribery charges stemming from accusations that in 1999 former HealthSouth CEO Richard Scrushy had donated to a political fund that was lobbying for Siegelman’s lottery plan in exchange for being appointed to a key medical licensing board. 

He was released on bail last April, after a series of investigations into allegations that his prosecution had been politically motivated. At that time, one Republican whistleblower named Rove as having had a hand in pushing for the prosecution.

The charges against Siegelman were brought by US Attorney Leura Canary, who had been appointed by President Bush in 2001. Her husband, Bill Canary, was a veteran GOP operative who worked in partnership with Rove on numerous Alabama campaigns in the 1990’s, as well as for the Republican challenger who had defeated Siegelman in Alabama’s 2002 gubernatorial race.