It's payback time. Democrats are calling for investigations, congressional committees-of-inquiry—a special prosecutor, even, to hunt down those complicit in the more unsavory elements of President Bush's "global war on terror." Party leaders on Capitol Hill, like Rep. John Conyers, chairman of the House Judiciary Committee, have urged "an independent criminal probe" into, by Conyers's reckoning, virtually everything controversial the Bush administration did.
President-about-to-be Obama is reluctant. But he needs the support of congressional Democrats to pass his agenda. He would be well advised to take a pass, even if he loses some votes from his party's caucus along the way.
The call to arms may be seductive; its advocates couch their cries in terms of motherhood and apple pie: transparency, a need for a full accounting, the rule of law. Humbug. This is about vengeance, pure and simple. There is little of substance that we do not already know—about what happened, why, and who ordered it. Most of our knowledge has come from inquiring reporters: Jane Mayer's superb book, "The Dark Side," and Barton Gellman's "Angler" being the latest reconstructions. The new report from Representative Conyers's Judiciary Committee—a scattershot 486-page condemnation of Bush's "imperial presidency"—adds little insight to the public record. On the most important issue, what was done in the name of fighting terrorism, we know all too well who did what.
What we know: President Bush authorized everything. Not in detail perhaps, but he approved the principles, as any president—even an incurious and argument-averse president—must do. (Blaming the bad stuff on Vice President Dick Cheney is the purest form of avoidance; Cheney could have done nothing without the president's delegated authority.) We also know that the Office of Legal Counsel in the Justice Department felt it their task to contrive legal justifications for whatever the White House wanted. The OLC's rulings may bend interpretations of executive power beyond the breaking point in the eyes of many Democrats and legal scholars but the OLC is the ruling legal authority inside the executive branch. We also know that officers of the CIA were explicitly assured that their actions had been judged legal.
Now turn to Congress—and the core charge that the administration "misled" the legislature and the American public by faking evidence that Saddam Hussein possessed weapons of mass destruction. Really? There is ample evidence that Saddam was genuinely believed to have an arsenal by those with access to the intelligence. Why? Because Saddam's closest associates and his army commanders believed it; and told the CIA and its British counterpart, MI6, when, by ingenious and genuinely heroic efforts, those intelligence agencies made contact with them. All this is a matter of public record.
The political reality, also on the public record, is that Congress miserably failed in its task of checking the executive. The classified version of that seminal National Intelligence Estimate on Saddam's WMD contained caveats and dissents excised from the unclassified and published version. Those should have raised questions. The classified NIE was sent to Capitol Hill. How many legislators bothered to go to the vault to read it? Three.
Consider, too, the controversy over interrogation methods. We know that the administration briefed these, as the law requires, to the most senior members of both Houses and parties. None of them took substantive steps to object. (Private letters don't count. They paper the files for subsequent backside covering.) Now some are charging a cover-up. What cover-up?
Unless cooler heads prevail, we face a rerun of the Iran-Contra debacle. In that episode, the special prosecutor, Lawrence Walsh, spent years hounding President Reagan's subordinates—while ignoring, because that was outside his brief, what was reasonably clear: that Reagan had sanctioned, even if by inaction at critical points, what they did. More precisely, his Cabinet officers, accustomed as they were to interpreting Reagan's fuzzy decisions, clearly believed he had given such sanction.
The Constitution prescribes what should happen when a President is plausibly guilty of "high crimes and misdemeanors". Congress can vote to impeach him. On Iran-Contra, the squalid political truth was that Congress lacked the cojones to impeach Reagan. Instead, the hunt was mounted for "guilty" subordinates. The careers of able officials and of CIA officers to whom the nation owed much were ruined, and they were nearly bankrupted—while the prime mover was judged too popular to attaint.
We could witness the same outcome now, unless the lust for vengeance is quashed. Congress risks savagely polarizing the country just when the economic meltdown demands bipartisanship. President George W. Bush will retire to speed-cycling around Crawford. But subordinates, underlings and CIA operatives will face, at the least, catastrophic legal fees and ruined careers. (The rule of thumb is that answering a special prosecutor's demands costs at least $250,000—and several times that if charges result, however strained those may be.)
What would that achieve, exactly? Obama is surely right to think that the verdict that matters most is the one the voters rendered in November. Leave the rest to historians—who surely will collectively judge that the president, Congress, the judiciary (with the public's tacit assent), in a panic after 9/11, colluded to order, do or acquiesce in actions which ill-became a great nation.
Representative Conyers sees inquiries as essential if America is to regain "our moral authority". Really? Is the rest of the world waiting for some bloodletting? No. Obama's election is seen, joyfully, as evidence that America has turned the page. Let us do the same. Leave the new president to restore America's standing by his actions—actions hopefully overseen by a more vigilant legislative branch.
The productive exercise at this juncture is to figure out how to prevent, as best we can, the grislier parts of this debacle from happening again. Appropriate to a government of checks and balances, the remedies will involve institutional tinkering. At the top of my list would be to give Justice's Office of Legal Counsel a mandate of independence—with, on the toughest issues, some built-in recourse to an outside judicial panel. (The separation of powers makes that tricky, but not impossible.)
Second on my list: revisiting the status of the CIA. The important failures of the agency after 9/11 lay with its analysts, not its operatives. The CIA talked itself, step by step, into trying to give the White House what it wanted. The agency's status within The Office of the President, rather than being an arms-length entity like the intelligence branches of State or Defense or Energy—all of which were sounder on Iraq—was the institutional basis for this "trahison des clercs." (Back in 2001, a senior Defense Department official, with a mission critical to the Iraq invasion, asked an equally senior agency official for information, only to be told: "We work for the White House. I don't have to tell you anything.") Perhaps it's also time to examine the case for having as CIA director a professional with a set term that doesn't coincide with presidential elections. A political appointee as CIA director compounds the potential collision of loyalties that James Madison wisely sought to avert by institutional means.
Along these lines, Representative Conyers does have one good proposal—an "independent blue-ribbon panel" to study such questions. There is a precedent. The only useful outcome of Iran-Contra was the Tower Commission, which studied lessons learned. The Tower Commission was a classic trio of "wise men." Arguably, its report pulled some punches—too readily, perhaps, exonerating Reagan personally—but it remains a shrewd analysis of the root cause of that affair: a failure by senior White House staffers to realize their job was to compensate for the weaknesses of the president. Much of the Iraq mess stemmed from the same failure within the Bush White House—but, this time, within State and Defense too. On terrorism, Congress and the Judiciary share blame for their failure to check the Administration. So a new Tower Commission should be given a broader remit to examine those wider failures throughout government. Its members should be chosen jointly by Congress and the new Administration. Let them sit in private. (A public "Truth & Reconciliation Commission" would be a disaster.) Give the panel a small but heavyweight staff, and powers of subpoena. Their task should not be to allocate personal blame but to search for lessons learned, and to propose whatever reforms might guard against repetition.
Would that be as cathartic as the Roman spectacle of miscreants hauled off in handcuffs? No. But the election, and Obama's inauguration, should provide whatever catharsis we need. A great nation, faced with the challenges America has at home and abroad, should settle for the task of seeking ways to prevent a repetition of the errors, excesses and failures for which all branches of government share responsibility.