Perhaps the most interesting aspect of the March 4 2008 US Senate hearing chaired by Pat Leahy on a Truth Commission (or TC), to me at least, was the preview it offered of the legal fights that are almost certain to surround the accountability movement’s efforts. It also gave viewers glimmpses of some of some figures who will likely be central to the upcoming battles.
The four supportive witnesses laid out arguments familiar to most of us who have been following this debate: torture and other crimes disgrace the US in the eyes of the world, make our soldiers less safe, and undermine the Constitution. They have also very likely involved actual violations of numerous existing US and international laws – i.e., crimes. We need to get the truth, all the truth.
I won’t repeat these arguments in more detail here, as they are likely familiar to most readers. (The list of favorable witnesses is at the end of this post.) And a more detailed summary of the testimony and questioning is here.
And if you missed the hearing, you can watch a video of the whole thing -- about two hours-- here .)
Much more interesting were the challenges to a TC, as laid out by the two witnesses added to the panel at the request of Republican Senators: lawyer David Rivkin and law professor Jeremy Rabkin.
Rivkin has already published an Op-Ed in the Washington Post blasting any “truth commission” idea as a constitutional travesty.
He has also vigorously defended the overall Bush “war on terror” approach to prisoners, insisting that “detainees in U.S. custody today enjoy the most fulsome due process procedures of any detainees or prisoners of war in human history.”
Hmmm. “Fulsome”?? What does that mean?
Webster’s offer an intriguing range of definitions:
1: characterized by abundance : copious. (This is probably how Rivkin meant it.)
But Webster’s also offers more. "Fulsome":
2: aesthetically, morally, or generally offensive.
3: exceeding the bounds of good taste : overdone.
In line with #3 above, Rivkin fulsomely called the Leahy TC proposal a “profoundly bad idea,” and “a dangerous idea,” He said it would involve an extra-constitutional “out-sourcing” of law enforcement functions that properly belong to regular government agencies such as the Department of Justice. He also contended that the TC’s investigations would encroach upon the civil liberties and privacy of the former officials who would be investigated.
Significantly, Rivkin also asserted that the TC’s work would be bad in another way: even if it did not result on prosecutions, he argued – or perhaps especially if it did not – its findings would encourage foreign prosecutors to ramp up potential criminal cases against former US officials in their countries. This risk would be the greater, he correctly noted, because some of the potential criminal charges – such as torture – are subject to claims of “universal jurisdiction” under international law.
Such foreign prosecutions, Rivkin insisted, would amount to a “soft form of rendition” for those implicated. He speaks with some knowledge in this area: besides working for the Reagan and first Bush administrations, his experience includes defending the government of Croatia against war crimes charges in the International Criminal Tribunal.
Jeremy Rabkin, the other Republican witness, is a law professor at George Mason University near Washington. As a writer he has been especially vocal in denouncing international legal efforts, as two titles of his articles suggest: “Global Criminal Justice: An Idea Whose Time Has Passed,” and “The Case Against the World Court.”
He declared that a Truth Commission is what a government does with war criminals when for various reasons it is unable to prosecute them. Despite Leahy’s protestations that he only wants to get at the facts, Rabkin said the supporters of the TC idea see it as a forum for branding former Bush administration officials as war criminals, while leaving them no way of defending themselves, as in a real court proceeding.
Rabkin said that if there needed to be actual prosecutions, there are agencies already available to undertake the prosecutions. Congress should not be involved in setting up platforms for “shaming people.”
Between the two hostile witnesses, Rivkin’s points were the ones most likely to end up entangling accountability efforts in years of delaying litigation. Rabkin’s main complaint, that it would be an exercise in public humiliation, is not a legal objection; shaming someone, so far as I know, is not a crime.
I expect to hear Rivkin's assertions again: that a TC would be unconstitutional and illegitimate; that its proceedings would violate the civil liberties of those called before it; that its conclusions would promote foreign meddling in matters of US law. (And behind these legalities is Rivkin’s stated belief that the Bush administration did nothing wrong in its “war on terror.”)
Leahy did not really debate Rivkin and Rabkin at any length. Instead, he remarked dismissively that the largest hayloft in his home state of Vermont could not produce as many straw men as this pair had presented. (Scott Horton has also posted a more nuanced but more scathing analysis of their line of argument. )
Most impressive to me at the hearing was the performance of Rhode Island Senator Sheldon Whitehouse. Whitehouse is my pick to become the star of the congressional accountability process. His statement on February 25, announcing the hearing with Leahy, was easily the most eloquent declaration on the topic I have seen from an elected official.
Whitehouse took on Rivkin and Rabkin with a combination of controlled fury and cool mockery. After dissecting what he called Rivkin’s “gallery of horribles,” he rebuked their fallback “everybody does it” line of defense with, “Until you know and we all know what was actually done, do not be so quick to throw other generations under the bus and assume they did worse.”
We shall hear more from Whitehouse, and doubtless Rivkin too. Indeed, as the accountability process picks up momentum, I expect it will supply Rivkin and his right-wing lawyerly ilk with plenty of high-ticket billings for years to come – both, as Rivkin noted, in this country and others.
Other witnesses: Thomas Pickering, a retired career diplomat.
Admiral Lee Gunn(ret.): former Inspector general of the Navy.
John J. Farmer Jr., former Attorney general of New Jersey and Senior Counsel to the 9-11 Commission.
Frederick A. O. Schwarz, Jr. Chief Counsel at the Brennan Center for Justice and chief counsel for the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activity (1975-1976), widely known as the Church Committee.