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(2006 AP photo)

Truth commission? Prosecution? Neither one?

COMMENTARY | March 09, 2009

The international press is divided on the question of a truth commission or other probes of the Bush administration. Some say serious political divisions would result, others favor prosecution. And in Calgary, there's a suggestion that Canada bar Bush from entering the country.

By Lauren Drablier

PARIS—Just days after the International Criminal Court issued a warrant for Sudanese president Omar al-Bashir for committing war crimes, some are questioning whether former president Bush and others in his administration should be prosecuted for war crimes.

In addition, Patrick Leahy, Democratic chairman Senate Judiciary Committee has proposed a truth commission into the Bush administrations war on terror. 

No one seems to know what to expect – although many are in favor of a probe, citing that the Bush administration must be held accountable for their actions under the law.  A Guardian writer says a commission, such as the “truth commission” proposed by U.S. Sen. Patrick Leahy (D-Vermont) would serve as a warning so that “never again would a bunch of crackpot zealots be allowed to run the nation”.

What is clear is that the Obama administration is keen on “looking forward”—which many interpret as a way of saying that he will not pursue Bush, nor others in his administration, for any violations of international law.

Qatari based Al Jazeera does not believe that there will be any prosecutions because the situation is too political in Senate mulls Bush-era abuse inquiry:

“Barack Obama, the US president, has previously dismissed calls for such a commission, saying he is more interested in "looking forward than I am in looking backwards", although he has stressed that "nobody is above the law".

“‘There is a sense on Capitol Hill that if criminal action was undertaken then those responsible should be punished,’ Al Jazeera's Rosiland Jordan said.

“‘There is also the competing concern of creating a major partisan rift in Washington when what they are really trying to deal with is the economic crisis.

“‘The last thing that the Democratic leadership on this issue ... wants to do is to do anything that would scare Republicans away from taking part in this panel.’

“Michael Ratner of the Center for Constitutional Rights told Al Jazeera that the commission was unlikely to achieve anything.

“‘I think it does nothing. It's almost a fraud. It gives an excuse to both sides of the aisle, Republicans and Democrats to say 'see, we've had a truth commission, no prosecutions, we'll get what can but most of it will be classified.'

“‘There is sufficient evidence to begin a criminal investigation and a prosecution for torture. Cheney [former vice-president Dick Cheney] has said he was involved in waterboarding - we know that's torture. We know Rumsfeld [former defense secretary Donald Rumsfeld] is up to his neck in this stuff.

“‘What Leahy is doing is really deflecting a serious criminal investigation. It's completely insufficient.’”

A writer in Canada’s Globe and Mail says a commission into the Bush administration would lead to serious political divisions and that perhaps the U.S. actions following 9/11 were justified.

“Yes, this is dissatisfying. No one should be above the law, especially those in government. But the political fallout of a congressional investigation would exceed its utility.

“Patrick Leahy, chairman of the Senate judiciary committee, wants to ‘develop and authorize a person [or] a group of people universally recognized as fair-minded, without any axe to grind’ to investigate ‘not for purposes of constructing criminal indictments, but to assemble the facts.’

“If the Democrats appoint a special counsel to investigate the Bush years, count on the Republicans to one day appoint a special counsel to investigate the Obama years. The only way to reverse this corrosive political culture is for one side to declare a ceasefire. Appointing a special counsel will simply make the war go on.

“We need to remember what the months after 9/11 were like. Everyone, including the most senior officials, believed another major attack was imminent. Anthrax was in the mail system. The American people demanded that their government go after the terrorists who had so savagely attacked them.

“Things got authorized that should not have been authorized. Lawyers came up with opinions that were fig leaves. And a certain paranoia, already percolating through the White House, began to spread.

“As fear of another attack subsided, people began having second thoughts. When the United States invaded Iraq on what turned out to be faulty or false pretenses, suspicion turned to anger. Mr. Bush ultimately lost all credibility in the eyes of the American people, the highest price a politician can pay. Unless someone knowingly committed a felony on government service, that's probably enough.

“Besides, we really don't know why there hasn't been another attack.”

According to the UK’s Guardian in Welcome back, US constitution, historically, wartime presidents have been under pressure to make big decisions, but none of them have taken such radical steps as the Bush administration.  Now the Guardian questions how much of an improvement Obama will make:

“For those who care about constitutionalism and the rule of law, the Obama administration's repudiation of positions that amount to (in the words of Yale scholar Jack Balkin) "a theory of presidential dictatorship" is undeniably a good thing. But it is worth considering a few additional reasons for why these memos were so disturbing.

“First, the radicalism of the Bush administration's positions can scarcely be overstated. For historical perspective, compare these memos with the positions taken by Abraham Lincoln during a much more severe internal security crisis. During the Civil War, Lincoln unquestionably made broad assertions of executive authority that pushed constitutional boundaries…

“But while Lincoln claimed that the exigencies of war gave him the authority to initiate certain actions, he never claimed that his powers were beyond congressional authority.

“Second, the nature of America's current conflict makes the Bush administration's uniquely radical assertions of arbitrary power especially dangerous.

“The "war on terror", though, has no discernible end point, and more importantly there is no set of state actors who can declare the war on terror over. At least some potential threat from terrorism would seem to be a permanent feature of modern governance. Combining these factors, we can see that the Bush administration was claiming essentially permanent powers of even greater scope than the temporary powers asserted by previous wartime presidents.

“Finally, it is important to note this statement from US attorney general Eric Holder: ‘Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties. Not only is that thought misguided, I fear that in actuality it does more harm than good.’

“The fact that the new administration rejects the idea that there must always be a trade-off between security and constitutional limitations on executive power is good not just for civil liberties, but for national security as well.

“None of this is to say that the Obama administration's actions on civil liberties have been beyond reproach. They have not jettisoned all of the Bush administration's power-expanding innovations, and the fact that Obama has rejected his predecessor's worst excesses certainly shouldn't earn him a free pass. But this week's actions suggest that the only question will be the degree of improvement over the past administration, not whether there will be improvement. After seven years in which John Yoo's most risible and dangerous theories were taken seriously by the most powerful public officials in the country, this is very much a relief.”

In another article, Seeking the truth about the Bush years, the Guardian believes that the commission should be endorsed by Obama with immunity for officials that testify in order to get to the real truth so that “never again would a bunch of crackpot zealots be allowed to run the nation”:

“Leahy's proposal would, assuming he can get enough well-respected non-partisan figures to sit on his commission, be a far more constructive process, which could demonstrate just how much the law and constitution were jettisoned after 9/11. Its results would not just be a demonstration of criminality but also a warning for the future.

“Without immunity, many officials may take that route, and the fifth amendment protection against self-incrimination, to weasel their way out of telling the truth. Indeed, with a promise of immunity, no matter how much that upsets the liberal Savonarolas, there is almost an incentive to spill the beans, since anything they clam up about could indeed be the basis for prosecution.

“Leahy's commission should not just concentrate on the acts of government. It should also examine the complicity of other actors, including the many in the media who after 9/11 cheered on and condoned acts of government – even though, as John Yoo's recently surfaced opinions for them indicate, they were next on the list.

“Obama should not only endorse Leahy's proposal, which would surely expose the unprincipled and, dare one say, un-American, behavior of the party now opposing his economic proposals, he should go farther. A truth commission into how the US and global economy was brought to this pass would indeed need to be bipartisan, since its roots go back through so many administrations, not least Bill Clinton's.

“But think how instructive it would be in analyzing and dissecting the dogmas that ruined a super-power, not least when the opposition (and indeed some in his own party) have shown no signs of abandoning the dogma. Admittedly, they are so dogmatic, it would have to be truth and ridicule rather than reconciliation, but it would serve to make sure that never again would a bunch off crackpot zealots be allowed to run the nation.”

In Punish torturers for waterboarding, the United Arab Emirate’s Gulf News argues that those responsible for war crimes should be held accountable:

“For their recognition of the wrong that has gone before, Obama and his Attorney-General Eric Holder must receive some acknowledgement. But they must also realize that the US still has a lot more to do if it is to earn back some measure of respect among those nations who value human rights. If the US now recognizes that waterboarding is torture, it must identify those who were responsible - from low level officers to White House executives - and take action against them.

“Justice must be seen to take its course as a result of Obama's review of the US's treatment of their terror suspects, if the world is to truly believe him when he says that ‘the United States of America does not torture’.”

Saudi Arabia’s Arab News maintains that Bush’s presidency is one of the “biggest weapon of mass destruction in our times” and the International Criminal Court has fallen victim to hypocrisy because of its failure to prosecute the Bush administration in ICC and travesty of justice:

“My issue with the ICC is this: If 300,000 people who died in the conflict in Darfur since 2003 prompted them to sit up and take notice and issue an arrest warrant, where had they been since 2003 when over one million innocent civilians have lost their lives as a result of US President George Bush’s illegal incursion into Iraq?

“There was no justification for the war on the Iraqi people. There were no threats directed at the United States of America or its people. There was no Al-Qaeda operating out of Iraq. Iraqis did not take part in the bombings of the twin towers of the World Trade Center; nor were they involved in any conspiracy against the US government.

“Where are the arrest warrants for Bush and his partner Tony Blair, who today pathetically claims he was duped into going along with the former US president when supplied with misleading information on weapons of mass destruction. How come Donald Rumsfeld of the “shock and awe” fame whose forces indiscriminately bombed Iraqi civilians into bits and pieces gets away scot-free?

“And the rest of Bush’s band of neocons and accomplices including Paul Wolfowitz, Richard Perle, Dick Cheney, Condoleezza Rice, Douglas Feith and John Ashcroft? Why is it that the ICC has not investigated their crimes and issued arrest warrants against all those with the blood of over one million innocent civilians on their hands?

“Their methods were all based on deception, and their tools, apart from allowing weapons of mass destruction to be used against the Iraqi people, included manipulating the media and their political office.

“The atrocities that Bush had committed against the Iraqi populace and the fatality numbers are well documented and yet the ICC did not dare raise an issue about his unlawful actions. History would undoubtedly depict Bush’s presidency as the biggest weapon of mass destruction in our times, but it is Bashir of Sudan who faces war crimes charges.

“Prosecuting a sitting head of state and letting the crooks off the hook smacks of gross hypocrisy on the part of the ICC. Is it because the Sudanese president is a black man and an African?”

In Being serious about torture. Or not. Australia TO believes that the Bush administration needs to be held accountable in order to prove that they are not above the law:

“On the very day of Obama's inauguration, the United Nation's special torture rapporteur invoked the Convention in calling on the United States to pursue former president George W. Bush and defense secretary Donald Rumsfeld for torture and bad treatment of Guantanamo prisoners.

“On several occasions, President Obama has indicated his reluctance to pursue war crimes charges against Bush officials, by expressing a view such as: “I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards.”

“And by not investigating Bush officials, Obama is indeed saying that they're above the law.

“Michael Ratner, a professor at Columbia Law School and president of the Center for Constitutional Rights, said prosecuting Bush officials is necessary to set future anti-torture policy. ‘The only way to prevent this from happening again is to make sure that those who were responsible for the torture program pay the price for it. I don't see how we regain our moral stature by allowing those who were intimately involved in the torture programs to simply walk off the stage and lead lives where they are not held accountable.’

“One reason for the non-prosecution may be that serious trials of the many Bush officials who contributed to the torture policies might reveal the various forms of Democratic Party non-opposition and collaboration.”

Canada’s Fast Forward Weekly questions whether Canada should bar or prosecute Bush:

“As George W. Bush’s St. Patrick’s Day visit to Calgary draws near, the federal government is facing pressure from activists and human rights lawyers to bar the former U.S. president from the country or prosecute him for war crimes and crimes against humanity once he steps on Canadian soil.

“Bush is scheduled to speak at the Telus Convention Centre March 17, but Vancouver lawyer Gail Davidson says that because Bush has been “credibly accused” of supporting torture in Iraq and Guantanamo Bay, Cuba, Canada has a legal obligation to deny him entry under Canada’s Immigration and Refugee Protection Act. The law says foreign nationals who have committed war crimes or crimes against humanity, including torture, are “inadmissible” to Canada.

“‘…It’s now a matter of public record that Bush was in charge of setting up a regime of torture that spanned several parts of the globe and resulted in horrendous injuries and even death. Canada has a duty.’

“Earlier this year, Manfred Nowak, the UN’s Special Rapporteur on Torture, said the U.S. has a “clear obligation” to prosecute Bush and former secretary of defence Donald Rumsfeld for authorizing torture — a violation of the UN Convention on Torture. “Obviously the highest authorities in the United States were aware of this,” Nowak told a German TV station in January.

“Joanne Mariner, terrorism and counterterrorism director for Human Rights Watch, says that while there’s legally “all the reason in the world” to prosecute decision-makers in the Bush administration, “it’s a different story” politically. “The Obama administration certainly has not given much in the way of encouraging signals for such a prosecution,” says Mariner

“Mariner’s not expecting a Canadian prosecution against Bush. “Obviously the Canadian government would have to be in favour of it, and that seems rather unlikely,” she says.

“‘We want to give him the welcome that he deserves — which is we want him to go back to the States, or we want him arrested,” says organizer Collette Lemieux. Activist Julie Hrdlicka, who visited Iraq twice during the American occupation, agrees. “We need to send a clear message to him that he’s not welcome,’ she says.

“Lemieux is hopeful that Bush will eventually be prosecuted. “Do I think that it’s going to happen very soon? No,” she says. ‘But I think that it’s very important that we keep the pressure up…. We have to make it clear that there’s accountability.’”

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