Leahy Schedules Hearing On Commission Of Inquiry

WASHINGTON (Wednesday, Feb. 25, 2009) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) announced Wednesday that the Committee will hold a hearing to explore ideas on how best to establish a commission to examine past national security policies.  Leahy first discussed a non-partisan commission of inquiry in a speech at Georgetown University on Feb. 9.

In a statement delivered on the Senate Floor Wednesday, Leahy announced a hearing entitled “Getting to the Truth Through a Nonpartisan Commission of Inquiry.”  The hearing will be held Wednesday, March 4, at 10:00 a.m., and will be webcast live online.

“We cannot be afraid to understand what we have done if we are to remain a Nation equally vigilant in defending both our national security and our Constitution,” Leahy said.  “I hope all members of Congress will give serious consideration to these difficult questions.”

Leahy has suggested an independent panel to focus on national security and executive power as related to counterterrorism efforts.  Leahy indicated that he has begun to speak with other members in Congress, outside groups and experts, and officials in the White House about the proposal.

The full text of Leahy’s statement as prepared follows.

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February 25, 2009


The Senate Committee on the Judiciary has scheduled a hearing on “Getting to the Truth Through a Nonpartisan Commission of Inquiry” for Wednesday, March 4, 2009 at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building.

By order of the Chairman.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On A Commission Of Inquiry
February 25, 2009

As Prepared

When historians look back at the last eight years, they will evaluate one of the most secretive administrations in the history of the United States.  Last November, the American people made clear their desire for change.  I share that desire to move forward, and to reestablish ourselves as a Nation dedicated to the rule of law, respected and trusted throughout the world.

We also know that the past can be prologue unless we set things right.  The last administration justified torture, presided over the abuses at Abu Ghraib, destroyed tapes of harsh interrogations, and conducted “extraordinary renditions” that sent people to countries that permit torture during interrogations.  The last administration used the Justice Department – our premier law enforcement agency – to subvert the intent of congressional statutes.  They wrote secret law to give themselves legal cover for these misguided policies, policies that could not withstand scrutiny if brought to light. 

Nothing has done more to damage America’s standing and moral authority than the revelations that, during the last eight years, we abandoned our historic commitment to human rights by repeatedly stretching the law and the bounds of executive power to authorize torture and cruel treatment.  As President Obama said to Congress and to the American people last night, “…if we’re honest with ourselves, we’ll admit that for too long we have not always met” our responsibilities.  But what the President said about the economy also holds true here, “it is only by understanding how we arrived at this moment” that we will be able to move forward.  How can we restore our moral leadership and ensure transparent government if we ignore what has happened? 

There has been discussion, and in some cases disagreement, on how best to do this.  There are some who resist any effort to investigate the misdeeds of the recent past.  Indeed, some Republican Senators tried to extract a devil’s bargain from Attorney General Holder – a commitment that he would not prosecute for anything that happened on President Bush’s watch.  That is a pledge no prosecutor should give, and Eric Holder did not. 

There are others who say that, regardless of the cost in time, resources, and unity, we must prosecute Bush administration officials to lay down a marker.  The courts are already considering congressional subpoenas that have been issued and claims of privilege and legal immunities – and they will be for some time.

Over my objection, Congress has already passed laws granting immunity to those who facilitated warrantless wiretaps and conducted cruel interrogations.  The Department of Justice issued legal opinions justifying these executive branch excesses which, while legally faulty, would undermine attempts to prosecute.  A failed attempt to prosecute for this conduct might be the worst result of all if it is seen as justifying abhorrent actions.  Given the steps Congress and the executive have already taken to shield this conduct from accountability, that is a possible outcome.

The alternative to these approaches is a middle ground, a middle ground I spoke of at Georgetown University a little over two weeks ago.  That middle ground would involve the formation of a commission of inquiry dedicated to finding out what happened.  Such a commission’s objective would be to find the truth.  People would be invited to come forward and share their knowledge and experiences, not for the purpose of constructing criminal indictments, but to assemble the facts, to know what happened and to make sure mistakes are not repeated. 

While many are focused on whether crimes were committed, it is just as important to learn if significant mistakes were made, regardless of whether they can be proven beyond a reasonable doubt to a unanimous jury to be criminal conduct.  We compound the serious mistakes already made if we limit our inquiry to criminal investigations and trials.  Moreover, it is easier for prosecutors to net those far down the ladder than those at the top who set the tone and the policies.  We do not yet know the full extent of our government's actions in these areas, and we must be sure that an independent review goes beyond the question of whether crimes were committed, to the equally important assessment of whether mistakes were made so we may endeavor not to repeat them.  As I have said, we must read the page before we turn it.

Vice President Dick Cheney continues to assert unilaterally that the Bush administration’s tactics, including torture, were appropriate and effective.  But interested parties’ characterizations and self-serving conclusions are not facts and are not the unadulterated truth.  We cannot let those be the only voices heard, nor allow their declarations to serve as historical conclusions on such important questions.  An independent commission can undertake this broader and fundamental task. 

I am talking about this process with others in Congress, with outside groups and experts, and I have begun to discuss this with the White House as well.  I am not interested in a commission of inquiry comprised of partisans, intent on advancing partisan conclusions.  Rather, we need an independent inquiry that is beyond reproach and outside of partisan politics to pursue and find the truth.  Such a commission would focus primarily on the subjects of national security and executive power in the government’s counterterrorism effort.  We have had successful oversight in some areas, but on these issues, including harsh interrogation tactics, extraordinary rendition and executive override of the laws, the last administration successfully kept many of us in the dark about what happened and why. 

President Obama issued significant executive orders in his first days in office, looking to close Guantanamo and secret prisons, banning the use of harsh interrogation techniques and forming task forces to review our detainee and interrogation policies.  I support his decisions, and I am greatly encouraged by his determination to do the hard work to determine how we can reform policies in these areas to be lawful, effective and consistent with American values.  My proposal for a commission of inquiry would address the rest of the picture, which is to understand how these types of policies were formed and exercised in the last administration, to ensure that mistakes are not repeated.  I am open to good ideas from all sides as to the best way to set up such a commission and to define its scope and goals. 

A recent Gallup poll showed that 62 percent of Americans favor an investigation of these very issues.  Respected groups including Human Rights First, the Constitution Project and thoughtful Senators including Senator Whitehouse and Senator Feingold have also embraced this idea.  The determination to look beyond the veil that has so carefully concealed the decision making in these areas is growing.  Next Wednesday, the Judiciary Committee will hold a hearing to explore these ideas, and to continue the conversation about what we can do moving forward.

Two years ago I described the scandals at the Bush-Cheney-Gonzales Justice Department as the worst since Watergate.  They were.  We are still digging out from the debris they left behind while those in the last administration continue to defend their policies, knowing full well that we do not even know the full extent of what those polices were or how they were made.  We cannot be afraid to understand what we have done if we are to remain a Nation equally vigilant in defending both our national security and our Constitution.  I hope all members of Congress will give serious consideration to these difficult questions.

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