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Seek Truth, But Prosecute Liars

The similar calls by Senate Judiciary Chair Sen. Patrick Leahy (D-VT) and House Judiciary Chair Rep. John Conyers (D-MI) for a Truth and Reconciliation Commission to investigate the crimes of the Bush/Cheney administration are potentially a terrible idea, but one that could turn out to be an excellent one, if handled correctly.

It would be a terrible idea if a Truth and Reconciliation Commission was just another 9-11-type body. That commission turned out to be worse than nothing, given that it was manipulated by the Bush administration to be toothless and that it ended up covering up more than it uncovered. Aside from the behind the scenes manipulation, the biggest problem with the 9-11 commission, though, was that is was not linked to any attempt to prosecute official wrongdoing.

A congressionally-established Truth and Reconciliation commission to examine Bush-era crimes like torture, lying to Congress, FISA violations, etc., would likely also end up doing more harm than good if it were just set up to call witnesses, issue a report and go home.

What is needed is a Truth and Reconciliation Commission that is linked to a plan for aggressively prosecuting wrongdoing. The idea, modelled on the commission set up by the popularly elected government under Nelson Mandela after the end of South Africa’s white apartheid police state rule, would be to hold hearings designed to get to the bottom of the many crimes that were committed against the Constitution, the people of the United States, and the people of the world, and to air them fully so that they would not happen again.

But for that to really work, there would have to be aggressive investigators and jurists appointed to the commission, it would have to be given unlimited subpoena power and an open-ended congressional investigative mandate with access to all state secrets, and finally, it would have to have the legal authority to grant immunity from prosecution to those who, under oath, volunteered to tell the truth, the whole truth and nothing but the truth to that body.

Linked to this, there would have to be a commitment on the part of the Justice Department, or ideally to an independent special prosecutor, to pursue those who either refused to testify before such a commission, or who were found to have lied to it.

I am not troubled by the idea that possible criminals, up to and including former President Bush and Vice President Cheney, might, as a result of their testimony before the commission, be allowed to live out their lives free from prosecution. If such men were to testify truthfully about what they had done, the effect on the American public would be so profound that it would be a powerful deterrent to any future leaders doing the same kind of thing, and those who were exposed would live lives of shame and be condemned by history. That’s good enough for me. I don’t need to see them locked up behind bars, or sentenced to death for murder. It’s not vengeance that we should be seeking, it is the prevention of another such episode of presidential lawlessness.

That said, the threat of prosecution is crucial to ensure that all administration officials come before such a commission if called, and that they testify honestly. Only by doing so could they avoid the risk of actual prosecution. Note that since this would not be a trial, there would be no “Fifth Amendment” waiver against self-incriminating testimony–a big advantage. If a witness were called and refused to appear, that witness should automatically be subject to investigation by a federal prosecutor. If a witness, as a result of documentary evidence, or the testimony of other witnesses, were found to have lied to the commission, he or she would also be subject to investigation and prosecution.

The beauty of a Truth and Reconciliation Commission is that it can truly be presented as an effort to root out a problem and solve it, without there having to be a sense of retribution and political division. Any political contentiousness would be the result of witnesses’ refusal to participate, or to come clean, not of the effort to elicit the truth.

The other advantage of the commission approach to dealing with the wrongdoing and unconstitutional actions and usurpations of power by the executive branch over the past eight years is that it would encourage many lower-level administration officials who may have participated in criminal behavior or conspiracies to come forward and clear themselves by telling the truth, making the job of prosecuting higher-ups much easier.

So I say a cautious yes to Leahy’s and Conyers’ initiative, but only with the proviso that any commission they propose be linked to a plan to prosecute liars and those who refuse to testify if called.

DAVE LINDORFF is a Philadelphia-based journalist and columnist. His latest book is “The Case for Impeachment” (St. Martin’s Press, 2006). His work is available at www.thiscantbehappening.net

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Dave Lindorff is a founding member of ThisCantBeHappening!, an online newspaper collective, and is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).

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