March 4, 2009
By Hans A. von Spakovsky
For more than 200 years, the reins of America's leadership have
been peacefully handed over from one administration to another,
regardless of party affiliation, in part because we have never
seriously indulged in criminalizing our political differences.
My Russian immigrant father, who fled Communist persecution,
told me more than once that avoiding political persecutions and
show trials was crucial to preserving our republican form of
government. But Sen. Patrick Leahy (D-Vt.) and House Speaker Nancy
Pelosi (D-Calif.) are now proposing something that may well result
in criminalizing policy differences.
Leahy has scheduled a hearing Wednesday on his proposal to
convene a "truth commission" to conduct inquiries into Bush
administration decisions on terrorist detainees, interrogation
procedures and other practices. As precedent, Leahy cited the Truth
and Reconciliation Commission, which was convened in South Africa
to investigate the barbarous practice of apartheid.
That outrageous comparison falls flat. For one thing, Leahy's
"truth commission" is not needed to serve any legitimate government
function. Effective government oversight has never required such
commissions. Moreover, Sen. Carl Levin (D-Mich.) held hearings,
under oath, over a 2½- year period looking into many of the
same issues. His report, though predictably partisan, found no
Why, then, does Congress need a truth commission at this point
in time? Only because the findings of previous investigations
didn't suit the far left's tastes?
Nevertheless, those pushing for a truth commission have made it
very clear that they have already determined the guilt of the Bush
administration. The proposal, therefore, seems targeted to define
political crimes in the spirit of, "We won, which means that the
former regime is criminal."
There is no other purpose to such a commission. If crimes were
really committed, federal prosecutors can investigate and
prosecute. If new legislation is required, Congress should
implement it through the normal legislative process. The same is
true if Congress wants to reorganize its intelligence committees or
internal reporting structures. The commission cannot be used for
impeachment purposes, so there is no real constitutional or legal
reason for an "independent" commission.
The proposed truth commission thus more closely resembles the
Moscow trials staged by Joseph Stalin in the 1930s than the
legitimate inquiries in South Africa. Stalin's show trials provided
a showcase for inflammatory claims and predetermined judgments.
They were a ruthless, cynical and chillingly effective means of
purging inconvenient opponents and critics. Sound familiar?
Congress should be very reluctant to approve Leahy's proposal.
After all, in these so-called crimes, members of Congress
participated as conspirators when it repeatedly funded the Bush
programs. Before Congress creates any commission, it should expose
its own failures, if indeed there were any, to stop these
Many of the same members who are so critical today remained
silent when they were briefed about our counterterrorism efforts.
In December 2007, The Washington Post reported that in 2002 four
members of Congress were given a virtual tour of the CIA's overseas
detention sites and were briefed on interrogation techniques. The
bipartisan group, which included Pelosi, was specifically briefed
on waterboarding. None of the four complained, and one of them
asked if the methods being used were tough enough.
The CIA gave key legislative overseers about 30 private
briefings, including waterboarding and other interrogation
techniques in 2002 and 2003. It is curious that lawmakers who were
repeatedly briefed and raised no objections should subsequently
criticize those very same policies. That the criticism came only
when memories of the Sept. 11 attacks faded and public opinion
shifted suggests a political motive. If that is the case, trying to
prosecute those involved is the concomitant attempt to criminalize
these political differences.
Advocates of the commission should have a second concern, too:
It will only harden partisan battle lines and ensure that public
discourse becomes increasingly strident.
The Internet is filled with postings whose tenor is: "If you are
on the other side of the political fence and hold different views
on how to address our nation's problems, you must be evil, corrupt
and, yes, a criminal." This commission will only exacerbate that
Third, if the Obama administration and congressional leaders
start deploying McCarthyite tactics against their former political
opponents, they risk losing public support for their efforts to
resolve our economic problems.
Finally, President Barack Obama should be especially wary of
efforts to criminalize policy decisions of prior administrations;
one day his staff will join the ranks of former administrations.
The realities of governing already have led Obama to continue
"controversial" positions on detaining enemy combatants and
asserting the state secrets privilege. Does he really want to see
honest differences of opinion on such questions -- many of which do
not enjoy support in his own party -- become criminal issues?
Obviously, Leahy and Pelosi view national security and public
policy differently than did the Bush administration. They disagreed
on the solutions to many of the problems faced over the past eight
years, including how to fight a war against terrorists. But
differences of opinion are not criminal. Exposing the prior
administration to prosecution for these differences will impose
great hardship on many individuals and create a precedent to
criminalize public service in the future.
Moreover, it will impair the ability of government officials to
deal with serious and ongoing problems. If Leahy is successful, his
"truth commission" will do untold damage to the fabric of our
A. von Spakovsky is a visiting legal scholar at the
Heritage Foundation. He is also a former commissioner on the
Federal Election Commission and counsel to the assistant attorney
general for civil rights at the Department of Justice.
First Appeared in the Politico
For more than 200 years, the reins of America’s leadership have been peacefully handed over from one administration to another, regardless of party affiliation, in part because we have never seriously indulged in criminalizing our political differences.
Rule of Law Initiative of the Leadership for America Campaign
Hans A. von Spakovsky
Senior Legal Fellow / Manager, Civil Justice Reform Initiative
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