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Editor’s Note: Just as Democratic leaders shied away from talk of impeaching George W. Bush in his final years in office, they are now averting their eyes from the compelling evidence that the former President committed felonies in torturing detainees, waging aggressive war and conducting warrantless wiretaps.

As a way to head off public pressure for prosecutions, several senior Democrats are floating the option of a bipartisan fact-finding body that would ask some questions but make sure no one went to jail. In this guest essay, author David Swanson dissects the weakness of that recommendation:

Senate Judiciary Committee Chairman Patrick Leahy has now joined House Judiciary Committee Chairman John Conyers in proposing some sort of "truth and reconciliation" commission for the crimes of Bush and Cheney, as if Bush and Cheney have multiplied into a whole population that simply cannot be processed by our judicial system.

Leahy has not introduced legislation, at least not yet. Conyers has introduced a bill, H.R. 104, that would create a commission to spend a year and a half looking at the various crimes of Bush and Cheney. [For details, see Consortiumnews.com’s “Leahy Calls for Truth Commission.”]

While this might allow congressional Democrats to run election campaigns against Bush and Cheney yet again, even though those two will have been out of office for two years, it's not clear that it would do much else that would be positive.

The problem with pursuing "truth" is that there are always more tantalizing details out of reach, and there always will be. We'll never know everything about what Bush and Cheney and gang have done to us.

We should strive to learn all that we can, but that task should not distract us from the fact that the President of the United States openly confesses to authorizing torture, warrantless spying, and other crimes, and that if a judicial and penal system is to have any deterrent value it is to be found in prosecuting and punishing crimes.

Moreover, allowing publicly known crimes to go unpunished tends to have the opposite effect of encouraging future violations.

Those who suggest that we need to learn whether torture was authorized, for example, should read the recent report from the Robert Jackson Steering Committee, read the recent report from the Senate Armed Services Committee, or simply flip on a television.

A commission is not needed to unearth information for the sake of prosecutions, because sufficient information for conviction is already in the public realm. And if anything is likely to unearth more information, it is a prosecution.

A commission with no power to punish anyone except through shame is powerless in an age of shamelessness.

The commission's subpoenas would be enforced through the courts, allowing the process to be dragged out well beyond a year and a half, or allowing witnesses to refuse compliance. All of this delay would simply serve to bolster claims that the crimes of the past eight years are unimportant because they are even more in the past.

And if the commission offered criminal immunity to witnesses in order to entice them to testify, then its result would be permanently blocking prosecutions in the name of revealing the "truth."

Moving the powers of Congress, which refused to impeach, and the powers of the Justice Department, which may refuse to prosecute, to an unelected commission would divorce this project from both the will of the people and the laws of the land.

Congress has effectively lost the power of subpoena by failing to use its inherent power of contempt to incarcerate recalcitrant witnesses. Relying on the courts and creating separate commissions designed to rely on the courts does nothing to restore the rightful powers of the first branch of our government.

Instead, Congress should reissue all outstanding subpoenas (not just continue arguing in the courts for enforcement of the old ones), issue new ones as desired, and itself enforce any that the new Justice Department does not.
If Senator Ron Wyden is serious about subpoenaing more torture evidence, he should make sure that his committee does so and enforces the subpoenas.

This won't take a year and a half, but how ever long it does take should be of interest to historians more than prosecutors, who should move ahead immediately without awaiting any superfluous information.

A prosecutor should be "special" or "independent," because nonpartisanship is not the same as bipartisanship. A commission made up of hesitant Democrats and cut-throat Republicans does not place the law or democratic representation above partisan goals.

A truly independent prosecutor would be loyal to the law, not the concerns of any party. If Obama wants to minimize Republicans calling him bad names he should create an independent prosecutor, not support a bipartisan commission.

Fortunately, activist groups that have been lobbying Congress members for a truth and reconciliation commission have been getting nowhere. The idea is incredibly unpopular in Congress. In fact, while 56 members of Congress support creating a special prosecutor, only 11 support creating a commission.

And more visitors to President-elect Obama's transition Web site supported creating a special prosecutor than supported anything else whatsoever.

While our nation has needed some reconciliation for a generation or more – and while some Americans apparently support violations of the law if accompanied by fear mongering and some of us do not – we have not been fighting a civil war, which is usually the reason for a truth and reconciliation commission.

We have not been slaughtering each other. We are not so overrun with criminals that no court system could possibly process them all.

We are simply in a situation in which the top elected officials in the land and a few dozen of their top staff and advisors have committed gross violations of the law and, in most cases, documented their own crimes in writing. Should we be reconciled with that?

Would placing the law above the wishes of the least popular President and Vice President in history – and thereby responsibly limiting the powers of all future presidents – be politically disadvantageous to the new President? If you believe that one, there's no amount of truth that can ever set you free.

David Swanson is the author of the upcoming book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union. He is co-founder of AfterDowningStreet.org.

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