The Obama era began in earnest last week, with bold action such as closing the Guantanamo Bay prison camp and promising to end torture. In its very first days, the new administration has begun to lift the veil of secrecy surrounding executive branch operations, and has made great strides forward on fundamental challenges such as energy and the environment, and above all the national economic crisis left in the wake of the Bush Presidency. While great challenges and much hard work remain, the way forward is bright and clear.
As we proceed, however, the question remains how best to respond to the severe challenge posed to our constitutional structure, and to our national honor, by the Bush administration's actions, and in particular its national security programs. Faced with a record of widespread warrantless surveillance inside the United States, brutal interrogation policies condemned by the administration's own head of the Guantanamo Bay military commissions as torture, and flawed rendition practices that resulted in innocent men being abducted and handed to other countries to face barbaric abuse, what actions will we take to meet our commitment to the rule of law and reclaim our standing as a moral leader among nations?
I have previously explained my view that a full review of the record must be conducted by an experienced and independent prosecutor, and should focus on the senior policymakers and lawyers who ordered and approved these actions. Others, such as my fellow Michigander Senator Carl Levin, have suggested similar measures. This approach is compelled in my opinion by the basic notion that, if crimes were committed, those responsible should be held accountable - after all, is there any principle of American freedom more fundamental than the rule that no person is above the law? If this independent review concludes that the Bush Administration's legal constructs make prosecution impossible for some, so be it, but the matter should be given a proper look before such judgments are made one way or the other.
Some commentators - including even those firmly opposed to criminal investigation - support the creation of an independent Commission with appropriate clearances and subpoena power to review the existing record, make policy recommendations, and publish an authoritative account of these events. I have introduced a bill in the House that would create such a commission, and I believe this sort of public accounting is critical as well.
There remain those, however, who would have us simply move on. Some fear the consequences of a true accounting, or worry that taking time to reckon with the sins of the past will hinder us in meeting the challenges of the future. Others argue that the facts are already known, and further review will accomplish little. Often, the call for further review of the Bush administration's actions is dismissed as partisan payback, kicking an unpopular President when he's down.
I could not disagree more with these views. As a practical matter, I do not believe that empowering a commission or an independent prosecutor would burden the Congress or the executive or would hinder our efforts to meet the challenges of the day. To the contrary, allowing outside review of these matters by qualified independent experts will free us and President Obama to focus our efforts where they are most needed - on solving the problems before us and improving the lives of the American people.
Nor do I agree that the relevant facts are already known. While disparate investigations by Committees of congress, private organizations, and the press have uncovered many important facts, no single investigation has had access to the full range of information regarding the Bush administration's interrelated programs on surveillance, detention, interrogation, and rendition. The existence of a substantially developed factual record will simplify the work to come, but cannot replace it. Furthermore, much of this information, such as the Central Intelligence Agency's 2004 Inspector General report on interrogation, remains highly classified and hidden from the American people. An independent review is needed to determine the maximum information that can be publicly released.
Finally, I wholeheartedly reject the notion that further review will cause our intelligence services to retreat into a dangerous "cycle of timidity." A properly conducted investigation will help set appropriate boundaries for future behavior, consistent with our fundamental values and the command of our laws. Have we really become so fearful that expecting our government to use its power within the boundaries of law is deemed unreasonably "timid"?
This argument has another flaw. For all the worry of "cycles of timidity," is there no countervailing concern for "cycles of aggression," or "cycles of lawlessness"? In an era where detainees have been held in limbo for years based on flawed or non-existent evidence, where we have waterboarded prisoners, deprived them of sleep, and subjected them to unconscionable degradations and abuse, and where our most powerful technologies have been turned inward to spy on Americans and within the United States, without court order or warrant and in apparent violation of a clear federal statute, is our greatest fear really that our national security services may be unduly timid?
To me, the bottom line is this: If we move on now without fully documenting what occurred, without acknowledging the betrayal of our values, and without determining whether or not any laws have been broken, we cannot help but validate all that has gone on before. If we look at the Bush record and conclude that the book should simply be closed, we will be tacitly approving both the documented abuses and the additional misdeeds we will have chosen to leave uncovered.
That is why there is nothing partisan about the call for further review. In the end, these acts were not taken by George Bush, or by John Yoo, or even by Dick Cheney - they were taken by the United States of America. By all of us. There is no avoiding the responsibility we all bear for what has been done, and for what we choose to do next.
Our country has never been perfect. This would not be the first time we were forced to take a hard look at difficult choices made in times of peril. But when we have done so before, it has made us stronger, both by improving our policies and our practices and, more fundamentally, by strengthening our moral core and by breathing new life into the principles of our founding.
The responsible way forward requires us to look back as we go.