Baseball Crank
Covering the Front and Back Pages of the Newspaper
March 5, 2009
POLITICS/WAR: Democrats May Live To Regret Instituting Witch-Hunting "Truth Commissions" To Follow Elections

Democrats have a long history of constructing their own petards on which to be later hoisted, due to their inability to consider the consequences of their actions beyond immediate partisan advantage. For a classic example of this process at work, look no further than the current proposal for a banana republic-style "Truth Commission" to conduct show trials of the outgoing Administration for the offenses of (1) acting aggressively to protect national security and then (2) losing an election.

The partisan nature of the enterprise is obvious: proponents are calling for a commission whose mandate is expressly limited to investigating Republicans, and control over which will presumably remain with the Democratic majority in Congress. (Not that a commission witch-hunting national security professionals in Democratic Administrations would be a good thing either, unless your goal is to drive good people from the field and make the ones who remain too timid to take action when the nation's security is at risk).

Thomas Jefferson, the first Democratic president and the first president to take office after a change in partisan control, did not bring up John Adams on charges for having passed the Alien and Sedition Acts; Jefferson simply removed the offending policy and cleared those who had been wrongly convicted. Our history, and our tradition of peaceful transfers of power, might have been very different if Jefferson had handed Adams over to Napoleon on the grounds that Adams had abused civil liberties in the Quasi War with France.

David Rivkin, in his testimony yesterday, pointed out that building such commissions as partisan weapons can in the long run have the same wholly forseeable yet unforseen blowback for Democrats as their creation of the Independent Counsel statute did, and then some:

[O]ne of the commission's most dangerous effects would be to increase the likelihood of former senior U.S. government officials being prosecuted overseas, whether in the courts of foreign countries or before international tribunals. The nature of the offenses supposedly at issue vastly increases the possibility of the commission's work having the effect of priming politicized foreign prosecutions. However erroneously, senior Bush Administration officials have been the subject of accusations that implicate not only U.S. criminal statutes but also international law, and which are arguably subject to claims of "universal jurisdiction" by foreign states. Foreign prosecutors could seize upon a supposedly "advisory" determination that criminal conduct occurred - especially if it is the only "authoritative" statement on the subject by an official U.S. body - as a ready pretext for their bringing charges against individual former U.S. officials. They might argue that the mere fact that the commission was established shows that grave crimes must have occurred and interpret the United States' non-prosecution of the individuals concerned as a mere technicality to be repaired by their own broad assertions of jurisdiction. Indeed, all of these circumstances appear to be tailor-made to support the invocation of universal jurisdiction by foreign judicial bodies and its utilization of this jurisdiction as the basis to launch prosecutions of Bush Administration officials. Doubtless, many commission advocates - who also have been among the most vociferous Bush Administration critics throughout the war on terror - hope for exactly this result.

They should think twice. Attempting to prosecute your political opponents at home, or facilitating their prosecution abroad, is like pouring acid on the machinery of democracy. The late and unlamented Independent Counsel Statute repeatedly showed that once this Pandora's Box is opened, its contents can wreak havoc equally across the political and party spectrum. Indeed, if al Qaeda is no more than a criminal conspiracy - as some have claimed for many years - then President Obama's charge sheet has already been started. By authorizing continued Predator missile attacks against al Qaeda's leadership in Afghanistan and Pakistan, he has directly targeted those "civilians" with deadly force. That is a war crime.

President Obama and the Democrat-controlled Congress are entitled to revise and reject any or all of the Bush Administration's policies. No one, however, is entitled to hound their political opponents with criminal prosecution - whether directly or through the device of a politically unaccountable commission. Those who support such efforts now may someday regret the precedent it sets. Claims that the Bush Administration abused presidential powers have been thoroughly reviewed by several congressional committees. The Justice Department is fully capable of considering whether any criminal charges are appropriate.

Let me close by pointing out a great, and perhaps unintended irony. Much of the anger about the Bush Administration's war on terror policies, has been focused on its treatment of captured alien enemy combatants and especially its rendition policy. In an effort to "investigate" these matters, the proponents of the commission appear to be giving short shrift to the civil liberties of Americans, outsourcing law enforcement functions to private entities and even to be practicing a soft form of rendition, in that they are virtually inviting foreign courts to go after American citizens.

Democrats who don't want to see members of Barack Obama's Administration dragged through a similar process - as they surely will be - should heed Rivkin's words. Will they listen now? Or will they wait for their own to be in the dock before they discover that they have created a constitutional crisis that threatens the process of peaceful transitions of power that have been one of America's most treasured legacies since 1801?

Posted by Baseball Crank at 9:06 AM | Politics 2009 • | War 2007-12 | Comments (14) | TrackBack (0)
Comments

Communists? Islamofacists? Merely childs play.
The United States has been at war with the truth for years, and no President who believes in 'change' or 'hope' will make it any different.
Hey, we've been making this bed for 30 years. Now let us sleep in it, please.

Posted by: Berto at March 5, 2009 10:14 AM

This is all so easy for you to write today, Crank. But was this what you were saying when the government was listening in on your phone calls without a warrant?

Posted by: Berto at March 5, 2009 10:23 AM

We definitely don't need a Truth Commission. Not only a bad idea for the reasons offered by Rivkin, but a huge waste of time, money and hot air.

Posted by: MVH at March 5, 2009 10:35 AM

Holding people accountable for their words and actions is unAmerican.
Didn't the Nuremberg Trials teach us anything about the divisiveness of political witch hunts?

Posted by: Berto at March 5, 2009 12:33 PM

The peaceful transition of power has already been threatened, and they were already put in the dock - Republican Senators calling the DoJ, very likely political prosecutions. Remember? The grand jury looking into is still churning away.

You've said that the Democrats (and Congress) should not do this - and really, this is the easy thing to say (both sides and many people do this). But really, why not make a much more declarative statement of what should be done?

Here are the options, really - Office of Special Counsel investigation(Iran-Contra), Church Committee (what Leahy wants), 9/11 Type Panel where things are stated and punishment is limited, or nothing and wait for 25 years to pass(when classified status may drop). Do you have any other options, or prefer one of those?

Posted by: Dave at March 5, 2009 3:46 PM

Oops, forgot to add my own declarative - Office of Special Counsel and the DoJ should be able to handle it.

And forgot one more question - do you believe we should know if the previous administration likely committed criminal acts?

Posted by: Dave at March 5, 2009 3:53 PM

There are standard procedures in place to handle crimes committed by public officials: impeachment for high officials, courts-martial for members of the military, and DOJ prosecutions for civilians at any level of government. We won't see those here - aside from the courts-martial we've already had for people like the nitwits at Abu Ghraib - because there isn't evidence to support the violation of any particular criminal statutes, nor was there ever a basis for impeaching anybody, as even Nancy Pelosi and Harry Reid knew well. The idea of a commission of this nature, chewing over controversies that have generally already been investigated multiple times, is to make vague charges in a procedural setting that does not require the rigor of the adversarial process, resulting in giving cover for grandstanding European prosecutors to abduct Bush Administration officials. The kangaroo court nature of this process is the point.

I don't doubt that Leahy would like to repeat the Church Committee's goal of eviscerating US intelligence-gathering capabilities.

Posted by: Crank at March 5, 2009 4:07 PM

"chewing over controversies that have generally already been investigated multiple times..."

Sorry, Crank, you're going to have to link this quote to something because the whole point of the last 8 years is that investigations are unAmerican. Next you'll be saying there was an honest debate about the Iraq War before the US invaded.

Posted by: Berto at March 5, 2009 7:19 PM

Hey, Berto's up for some serious 'vestigatin'. He's just the kind of guy a responsible political party would want supporting them as they screw the nation into the ground. So what if the red meat gets on everybody's clothes--it's worth it if it keeps responsiuble citizens like Berto distracted.

Dance for your masters, Lefties!

Posted by: spongeworthy at March 5, 2009 7:36 PM

I think I'll take my chances that there will not be any war criminals in the Obama Administration.

For a truth commission, to paraphrase the village idiot, "Bring 'em on!!!!"

Posted by: Magrooder at March 5, 2009 10:32 PM

Punishing office-holders for political acts—even with a kinder, gentler type of punishment such as rendered by a "truth" commission—would be an encouragement for a future President to resist a peaceful turnover of power. This is certainly one of the stupidest ideas yet conceived, and if generally followed would lead to eventual loss of representative government.

Posted by: Dai Alanye at March 6, 2009 5:00 AM

Crank,

"nor was there ever a basis for impeaching anybody, as even Nancy Pelosi and Harry Reid knew well."

Could it also have been that, unlike Newt and his minions, Reid and Pelosi respected the idea that, given the sorry state that Bush and Cheney had driven the country, it was better to check their actions in Congress and let the justice system take care of them after they had left office?

Posted by: Magrooder at March 7, 2009 11:54 AM

Good Righties, like Crank and spongeworthy, continue to root for their team because they've been assured they will be invited to the big victory parade.
Hey guys, have they yet told you you'll be wearing clown suits and carrying shovels and brooms?

Posted by: Berto at March 8, 2009 1:07 PM

"Could it also have been that, unlike Newt and his minions, Reid and Pelosi respected the idea that, given the sorry state that Bush and Cheney had driven the country, it was better to check their actions in Congress and let the justice system take care of them after they had left office?"

If that was their goal, why aren't they "letting the justice system take care of them?" These "truth commissions" aren't part of the justice system, and there would be no reason to create them if the justice system was up to the task they have in mind.

Posted by: Joel B. at March 9, 2009 4:44 AM
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