- The Washington Times - Monday, February 16, 2009

ANALYSIS/OPINION:

Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, has recently suggested that there should be a “Truth and Reconciliation Commission” to look into claims of legal and constitutional violations of the Bush Department of Justice, Bush White House officials, and perhaps others in the Bush administration.

Mr. Leahy apparently envisions this to be a U.S. version of a similarly named commission established by South African President Nelson Mandela.

Mr. Mandela saw such a commission as a cathartic method for South Africans to learn the truth and move beyond the anger of the past - to avoid what one observer at the time called the bitterness and divisions of “victor´s justice.”

Many Americans want to go further than that type of commission. They want to launch criminal prosecutions of Bush administration officials. They focus mainly on three areas: allegations of illegal and unconstitutional conduct authorizing (i) arguably illegal torture of detainees, (ii) warrantless counterterrorism wiretaps, and (iii) illegal and unconstitutional treatment of detainees, including “renditions” (abductions) to foreign prisons.

When President Obama was asked about this subject at his first press conference, his first answer was, “nobody´s above the law” and “clear instances of wrongdoing should be prosecuted just like any ordinary citizens.” That seems right. After all, weren’t Nixon Attorney General John Mitchell and all the rest of the “president´s men” prosecuted and imprisoned for clear criminal conduct, such as obstruction of justice and perjury?

On the other hand, isn´t there a distinction between criminal conduct, for the purpose of covering up crimes and obstructing justice - as clearly was the case with Watergate - versus judgments of Bush administration officials, however much we may fundamentally disagree with them (as I do), but which were made in good faith in the belief that they were both legal and in the best interests of protecting America from post-9/11 terrorism?

Certainly, Mr. Leahy´s proposal would be constructive if it led to a full and transparent airing of all these controversial decisions and explanations by the key Bush White House and Justice Department officials responsible for them.

There are four key such officials who should be called upon to explain fully their judgments and the legal memoranda they relied on:

First and foremost, Vice President Dick Cheney, who seemed to dominate and direct all these actions; second, his chief of staff and legal counsel, David Addington; third, then White House Counsel and later Attorney General Alberto Gonzales; and fourth, the deputy to the Department of Justice legal counsel, John Woo, who wrote the two infamous memos so narrowly defining the legal definition of torture as to contradict the U.S. Army Manual and years of international law.

Most, but not all, of the facts about the roles of these particular individuals have been publicly reported, and most are set forth in detail in the must-read “The Terror Presidency: Law and Judgment Inside the Bush Administration,” which is not by a liberal Democrat but by Jack L. Goldsmith, a loyal and dedicated conservative in the Bush Justice Department. As assistant attorney general for legal policy, Mr. Goldsmith stood up to Mr. Addington and overturned Mr. Woo´s memos - and many others - as legally unsound.

Besides Mr. Goldsmith, there are many other heroes in this story: former Attorney General John Ashcroft, who finally said no to Mr. Addington,Mr. Gonzales, Mr. Cheney and others from his hospital bed when they sought continuation of authority of the surveillance program late one evening without appropriate legal authorization from the FISA court. Deputy Attorney General James Comey and FBI Director Robert S. Mueller IIIbacked up Mr. Ashcroft.

Another important hero, whose story was recounted in 2007 by Jane Mayer in the New Yorker, was Alberto J. Moro, who, as Navy general counsel, drafted a June 18, 2004, memorandum to the inspector general of the Navy on detention abuses occurring under military control.

So a “Truth and Reconciliation Commission” shedding light onall of these issues could be constructive - so long as the individuals involved are given a fair opportunity to explain the basis of their judgments and given the benefit of the doubt about acting in good faith, and if the focus is on the search for truth and a balanced and vigorous debate. In other words, the commission must not revert to a grotesque liberal version of the McCarthy-type red-baiting hearings of the 1950s.

Mr. Obama said at that first press conference: “My general orientation is to say ‘let´s get it right moving forward.’ … Generally speaking, I´m more interested in looking forward than I am looking backwards to pull everybody together.”

Not surprisingly, Abraham Lincoln had the same approach towards the Confederacy regarding looking forward, not backward. In his second inaugural speech on March 5, 1865, a little more than a month before his assassination, Lincoln did not call for Confederate leaders to be tried and hanged for treason or war crimes, as many of his radical Republican base in Congress and the country would have wanted at the time. (In fact, only one Confederate was tried and executed after the war: Maj. Gen. Henry Wirz, who presided over the deaths of more than 15,000 Union soldiers at the Andersonville prison camp.)

Here is the remarkable last paragraph of Lincoln´s second inaugural: “With malice towards none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation´s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.”

Note that Lincoln did not differentiate Union soldiers and their widows and orphans from Confederate soldiers and their widows and orphans. He was looking to the future, not the past.

Throughout its history, America has avoided “victor´s justice” of prosecuting prior administration officials for policy misjudgments as power has been transferred from one party to the next and back again. We have too much to do at home and abroad, too much on our plate, to begin such a backward-looking, dangerous precedent now.

From Mr. Obama´s words at the press conference, it is apparent he agrees and he won´t let that happen. We need truth - but we also need reconciliation, not retribution. Under his leadership, thank goodness, we can have the first two but not the latter.

• Lanny Davis, a Washington lawyer and former special counsel to President Clinton, served as a member of the Privacy and Civil Liberties Oversight Board from 2006 to 2007. He is the author of “Scandal: How ‘Gotcha’ Politics Is Destroying America.”

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