Legal Commentary

USA Today?s editors revealed Tuesday that they oppose efforts by Democrats such as Rep. John Conyers (D-Mich.) and Sen. Patrick Leahy (D-Vt.) to form commissions to investigate the many ?excesses? of the Bush team.  We?re reminded that such decisions are ultimately political, not legal.  Let?s look at the hodgepodge of points USA Today?s editors made, as these points represent ?conventional political wisdom.? (Unfortunately, Rep. Conyers? own argument seemed fairly weak and somewhat apologetic.)

USA Today latched onto Democrats? calling Bush Administration misdeeds ?excesses.?  That?s a pretty tame term for what, if proven, would amount to major crimes: torture; searches conducted without warrants or probable cause; aggressive war.  I was struck by the USA Today's reflexive sense that the investigation would ultimately be partisan.  It?s partisan to investigate war crimes? Democrats should not be painted as partisan for pursuing investigations.  Instead, Republicans should be faulted as partisan for not joining these efforts.

If I am ever accused of a crime, I will request a ?commission? to look at my ?excesses,? rather than a jury.

USA Today said investigating the alleged abominations would pose ?a divisive distraction? from ?rescuing the economy, controlling [the US's] exploding debt; fighting two wars and fixing other pressing problems.? Echoing President Obama, the editors said we should look forward, not backward.  I?m reminded of the workaholic who toils long and late to avoid introspection.



If I am ever accused of a crime, I will cite the crises of the day, and our need to look forward, not backward at my excesses ?.

Where?s the principle here - would balmier times change the editors? minds?  Moreover, these far-flung problems may be linked. Had the Bush Administration followed the rule of law and not wasted time and brainpower, for example, building an entirely new justice system designed to deny rights to a small number of people at Guantanamo, our leaders might have been able to think more clearly about other issues. Had the Bush Administration (and our major newspapers such as the Washington Post and New York Times, and our citizenry, for that matter) weighed the putative evidence of Iraq?s supposed WMD more carefully and followed international law, we would not be paying billions of dollars for all that unnecessary killing. 

The USA Today editors wrote, ?Then there is the question of motive. Unlike Richard Nixon, whose subversion of the Constitution was meant to perpetuate his power, Bush?s post-9/11 decisions were simply his best judgment about how to keep the nation safe.? That?s reassuring, but it begs the question: Can we know motive without even a ?justice lite? investigation by a commission that will ultimately end with a big group hug?  Also, the illegal methods - torture, widespread eavesdropping - are not really effective for information-gathering.  Invading Iraq did not make us safer. These post-9/11 decisions - especially endless war - unleashed methods commonly applied by governments that aim to increase their own power and crush dissent. At the USA Today, the government?s (proclaimed) ends justify the means. 



If I am ever accused of a crime, I will say I simply had good intentions.

The editors also reassured us that, ?The fact is the Bush administration?s excesses are already well-documented, thanks largely to journalists, historians and Democrats who took charge of congressional oversight after 2006.?  I don?t remember lots of meaningful Democratic oversight after 2006.  I do remember continued funding for the Iraq occupation and immunity for telecoms involved in warrantless ?excesses.?

If I am ever accused of a crime, I will point out that everybody already knows everything I did, and that the government now trying to bring me to justice was in power at the time of my excesses - so what?s the point?

The USA Today concluded, ?Congress?s attention is better devoted to solving problems than to exacting retribution.?

If I am ever accused of a crime, I will say that government?s purpose is not to exact retribution, but to solve problems.

Maybe a deeper message lurks: If our political leaders hadn?t spent their time and our money seeking retribution for 9/11 by engaging in divisive distractions such as invading and occupying Iraq and torturing people at Guantanamo and beyond - acts that killed and maimed and harmed thousands of innocent people - maybe we wouldn?t have so many crises in the U.S.A. today.

The USA Today?s political arguments are unconvincing. The editors' tentative support for only a limited investigation into ?one or two key unresolved questions, such as whether torture actually produced information that saved lives,? seems small-minded and backside-covering in the shadow of the monumental crimes alleged.  The crimes alleged are reprehensible, monstrous, among the worst crimes human beings can commit.  We owe ourselves and the world - especially our victims - a full airing, and punishment of the perpetrators.  Let?s rise above partisanship and investigate.