The campaign for a "truth commission" to investigate Bush administration interrogation and detention policies appeared to pick up fresh momentum this week with the disclosure of internal Justice Department memos asserting far reaching presidential powers to override constitutional protections in the war on terror. But a key Republican senator Wednesday threw a dose of cold water on the idea, underscoring the huge political obstacles to gaining approval for such a panel.
Even while he called the newly released Justice memos "shocking," Sen. Arlen Specter, the ranking minority member on the Senate Judiciary Committee, said he saw no need for Congress to create a special commission to investigate such matters when the Obama Justice Department could do the job on its own. "We don't want to go off helter-skelter … on a fishing expedition," said Specter at a Judiciary Committee hearing called by chairman Sen. Patrick Leahy to generate support for the idea. "It seems to be [that] we want to follow regular order here. You have the Department of Justice that is fully capable of doing an investigation. They re not going to pull any punches on the prior administration."
The negative comments by Specter were especially significant because, as a moderate, the Pennsylvania senator's backing is often seen as key to winning bipartisan support for controversial proposals. As if to underscore those hurdles, a senior Obama administration official told NEWSWEEK that, even in the wake of the new revelations, there was still little enthusiasm within the administration for the idea. "It's a distraction," said the official, who asked not to be identified talking about sensitive political matters. "At a time when we are trying to get heath-care, energy and other proposals through—and you need bipartisan support—looking backward only generates more partisan opposition and noise."
The idea for a special truth-commission inquiry has been actively pushed by human-rights groups, and it picked up a powerfully ally when Leahy endorsed the idea last month at a speech at Georgetown University. (House Judiciary Committee chairman John Conyers has also introduced a bill to create a bipartisan commission of inquiry.) Calls for such a panel have also been fueled by a series of disclosures over the past few months about alleged abuses involving the treatment of detainees and warrantless surveillance during the Bush era. John Farmer, a former senior counsel to the 9/11 commission, who testified in favor of the idea at today's hearing, said the "turning point" for him came with statements in January by Susan Crawford, the chief judicial officer for the Pentagon's military commissions. Crawford told the Washington Post that she withdrew the case against Mohammed al-Qahtani, the alleged 20th hijacker on 9/11, because she had concluded he had been "tortured" by interrogators at the U.S. detention facility at Guantánamo Bay, Cuba. "Think about that for a moment," Farmer said in his testimony to the judiciary committee. "We have now reached a point where the tactics we have adopted in the struggle against terrorism have compromised our ability to respond to the 9/11 conspiracy itself."
The idea behind a truth commission would be to conduct independent fact-finding in order to provide a complete public accounting of just how far the Bush administration went in waging the war on terror—and what the consequences for national security were. Several witnesses and senators at today's hearing emphasized there is still much that has never come out. "We don't know yet what was done," said Sen. Sheldon Whitehouse, a Democrat from Rhode Island and a strong backer of a truth commission. In the case of Qahtani, for example, there has been no further public account or testimony by Crawford (who is still at the Pentagon) about the basis for her conclusion that the detainee had been tortured. Also, this week, the CIA acknowledged in a court filing that it had destroyed 92 hours of videotapes interrogations of two "high-value" detainees—Abu Zubaydah and Abd al-Rahim al-Nashiri, both of whom were subjected to waterboarding, or simulated drowning.
But Specter argued that the keys to unraveling these and other lingering mysteries about Bush-era interrogations resides within the Justice Department and ought to stay there. He pointed, as one example, to a soon-to-be-completed Justice Department ethics report by the Office of Professional Responsibility (OPR) into the Office of Legal Counsel (OLC) memos authorizing waterboarding and other controversial policies under President Bush. Among the new disclosures this week was an Oct. 23, 2001, OLC memo that also told the Bush White House it could use the U.S. military to round up terror suspects, storm apartment and office buildings and set up roadblocks inside the United States on the grounds that Fourth Amendment restrictions on unreasonable searches and seizures did not apply in the war on terror. The memo, written by conservative law professor John Yoo, also suggested that First Amendment guarantees protecting freedom of speech and the press could be suspended "to the overriding need to wage war successfully." (Yoo has not responded to a request for comment about the memo.)
Specter noted that the OPR probe is examining whether the authors of the OLC memos deliberately signed off on unreasonable interpretations of the law in order to provide "legal cover" for the extreme tactics the Bush White House wanted to use. "If they did that knowingly, there is mens rea," Specter said, using the Latin term for a guilty mind. "I'd have to search the criminal code, but it sounds to me like it may fall within criminal conduct."