There is an ongoing debate at the highest levels of government about what to do about alleged illegal conduct of the Bush administration. House Speaker Nancy Pelosi favors prosecutions, the Senate Judiciary Committee will hold a hearing Tuesday on Chairman Patrick Leahy's plan to establish a South African-style "truth commission," and President Obama has spoken variously about prosecuting "instances of wrongdoing" or "moving forward" by putting past mistakes behind us.
A truly independent and non-partisan inquiry might prove interesting, as many of the most controversial positions of the Bush administration appear to have already been embraced by the Obama team. During confirmation hearings, both Attorney General Eric Holder and Solicitor General nominee Elena Kagan testified that America is at "war" and al Qaeda suspects captured far from the battlefield may be lawfully detained for the duration of hostilities without trial. The Justice Department declared last month that detainees outside U.S. territory have no right of access to American courts.
CIA Director Leon Panetta said during his confirmation hearing that the agency might continue "extraordinary rendition" practices in which terrorist suspects are seized abroad and transferred to third countries for interrogation; and if the interrogation techniques permitted by the president's Jan. 21 executive order are "not sufficient" to get information from a detained terrorist about a future attack, Mr. Panetta said he would seek "additional authority."
Some may honestly believe that "lies" by the Bush administration deceived a reluctant Congress into supporting the removal of Saddam Hussein from power; but a competent inquiry would reveal that - years before President Bush left the governor's mansion in Texas for the White House - the Senate unanimously approved the "Iraq Liberation Act" calling for the replacement of Saddam by a democratic regime.
Even the hated "presidential signing statements" once denounced as unconstitutional by the American Bar Association, might not be behind us, as Professor Dawn Johnsen, nominated to head the Justice Department's important Office of Legal Counsel, acknowledged in a 2007 law review article that "Presidents do have the authority to refuse to comply with statutes," giving as an example the more than 500 legislative vetoes that have been enacted by Congress since the Supreme Court declared them unconstitutional in 1983. "Consistent with Chadha," she wrote, "presidents view such provisions as unconstitutional and do not comply with them. ..." This was, of course, the most frequent reason for signing statements in each of the past four presidential administrations.
As fun as such an inquiry might be, there were things in Sen. Leahy's Feb. 9 Georgetown University remarks in which he first proposed the "truth commission" that raise concerns about whether we would likely wind up with an independent, nonpartisan inquiry. To begin with, comparing the alleged legal shortcomings of the Bush administration with the brutal torture and murder of an estimated 20,000 South Africans - many of them burned alive - is absurd. Mistakes were made, but this is hardly a national crisis.
Far more troubling was Mr. Leahy's other example of what he has in mind: the 1975-76 Church Committee that investigated illegal activities by the CIA and FBI. We remember it well. Headline-hunting senators on both sides of the aisle competed to see who could make the most sensational claims to get their names on the front pages; and when it was over the public was left with a very misleading image of our intelligence community and the fine men and women who serve therein.
We are not suggesting there were not serious mistakes made that were addressed during the Church hearings. But many of the allegations were greatly overstated. An article in the current issue of the Indiana Law Journal, based on an examination of more than 700 pages of recently declassified CIA "family jewels" documents, concludes that but a single activity - the secret testing of LSD on unconsenting Americans - was clearly unlawful at the time. That program was terminated during the Kennedy administration, a dozen years before the Church inquiry.
To mention perhaps the most egregious overstatement, it was repeatedly asserted during the Church hearings that the CIA had been "assassinating" people around the world - a theme Hollywood perpetuates today. One had to struggle through reams of reports to learn that, in the end, the Church Committee could not find a single instance in which the CIA had ever "assassinated" anyone - and CIA directors had years earlier issued directives prohibiting any CIA involvement with assassination. It is true that, pursuant to orders from President Kennedy, the CIA repeatedly attempted to assassinate Fidel Castro; but Castro's blatant efforts to overthrow other governments in Latin America arguably made him a lawful target for lethal measures of collective self-defense.
When the Carter administration took office following the Church hearings it decided to prosecute two senior FBI officials who - following procedures approved by presidents and attorneys general since FDR - authorized warrantless searches (against targets not connected to a foreign power) in an effort to prevent a major terrorist attack on a U.S. military base. Both were convicted of felonies. In the years that followed, it was extremely difficult to get FBI agents to volunteer for counter-terrorism assignments. (One of us spent 11 years supervising FBI counterterrorism and counterintelligence efforts and observed this reluctance personally.) The risk-avoidance culture and excessive restrictions on gathering intelligence that resulted from the Church hearings and other congressional attacks on the intelligence community were major factors in our failure to prevent the Sept. 11 attacks.
The Foreign Intelligence Surveillance Court of Review noted in 2002 that every court to decide the issue held the president has independent constitutional power to authorize warrantless foreign intelligence surveillance, adding that Congress "could not encroach on the president's constitutional power" by mere statute. Just last August, this same court reaffirmed the existence of a foreign intelligence exception to the Fourth Amendment's warrant requirement. Candidly, these legal issues are far more complex than some critics would have us believe, and a new Church Committee-like public inquiry might easily have a similar chilling effect on our ability to recruit good people for future counterterrorism activities.
Were mistakes made during the last administration in the struggle against al Qaeda? Certainly. But rather than risking a partisan witch hunt that could weaken our ability to defend America against future terrorist attacks, we believe President Obama was correct when he declared America should focus on the future. And speaking of mistakes, after leaving the Department of Justice, Griffin Bell remarked to one of us that his biggest regret from his service as Carter administration attorney general was having approved the prosecution of those FBI officials.
P.X. Kelley is a retired general and served as the 28th commandant of the Marine Corps and a member of the Joint Chiefs of Staff 1983-87. Oliver "Buck" Revell is a former FBI associate deputy director for investigations. During 30 years of service, he supervised FBI counterintelligence and counterterrorism investigations. Robert F. Turner is a professor and worked as a Senate staff member during the Church hearings and later as acting assistant secretary of state for legislative affairs.