On Monday, the Obama administration released nine previously secret legal opinions crafted by the Office of Legal Counsel to enhance the presidential powers of George W. Bush. The legal memos represent the most comprehensive demonstration yet of the sweeping definition of presidential power approved by Bush administration lawyers in the months after 9/11. They also lend added urgency to Wednesday's Senate hearing on the possible formation of a truth commission to investigate potential abuses of power in the Bush White House.
In a statement on The Department of Justice website, Attorney General Eric Holder said the memorandums were being released in response to "legitimate and substantial public interest." While Holder's insistence that "Americans deserve a government that operates with transparency and openness" will likely play well among human rights activists and congressional Democrats, the new batch of opinions does not include the most controversial memos these groups have been demanding over the past few years. "Dozens of other OLC memos, including memos that provided the basis for the Bush administration's torture and warrantless wiretapping policies, are still being withheld," said Jameer Jaffer, Director of the ACLU National Security Project, in a release issued Monday night. According to DoJ spokesman Matthew Miller, the guidelines proposed by the Attorney General during his confirmation hearing are still in place for these additional policies: a full review will not occur until an assistant attorney general to head the Office of Legal Counsel is confirmed.
Arriving on the heels of reports that the CIA destroyed ninety-two videotapes of interrogations, Monday's revelations underline the challenges that face President Obama and Congress in addressing the controversial legacy of the Bush administration. Senator Patrick Leahy, chairman of the Senate Judiciary committee, has called for a nonpartisan "truth commission" to investigate the use of torture, illegal wiretapping, and other alleged abuses of power during the Bush years. Tomorrow's hearing on the proposal, to be held by Leahy's committee, could represent the first concrete step toward a broad review of civil liberties violations under the War on Terror.
With a similar proposal having been offered by House Judiciary Committee Chairman John Conyers, the idea of examining Bush has gained some traction among prominent Democrats. Some, however, have called for a more aggressive approach.
A number of liberal advocacy groups argue that a truth commission is meaningless without the threat of criminal prosecution. On February 24, over 20 organizations issued a joint statement calling on Holder to directly appoint a special prosecutor to investigate former Bush administration officials. House Speaker Nancy Pelosi has called the truth commission "a good idea," but has also expressed concerns that Leahy's proposal will offer "immunity" for Bush administration officials. "I think that some of the issues involved here, like politicizing of the Justice Department, and the rest, may have criminal ramifications," she told MSNBC on February 25.
Nothing in President Obama's executive orders thus far suggests that he intends to review the previous administration's actions for possible criminal sanctions. The partisan rancor that might be sparked by any domestic or international prosecution is a significant disincentive for prosecution, especially as Obama seeks to build good will among the GOP's ranks and promote his administration as an open, bipartisan regime. But the arrival of Monday's memos and Wednesday's hearing could represent the best chance yet for those favoring prosecution to legitimize their cause. A USA Today/Gallup Poll conducted in February found that 62 percent of Americans favor a criminal investigation or an independent panel. Wednesday's discussions and testimony may have an outsized influence in determining whether consensus coalesces around one or both of these options.
Wednesday's hearing will be the first open, public discussion by leglisators of both parties geared toward crafting a potential review of Bush. With Obama's new Department of Justice having taken its own step toward making the Bush years more available for review, human rights groups and Bush protesters will be eagerly awaiting what comes out of Wednesday's discussion.
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