Michael Isikoff reports on the potential for an independent commission to investigate counterterrorism techniques, including the use of torture in interrogation. Obviously, with any such proposal there is going to be significant push-back.

“If there was any effort to have war-crimes prosecutions of the Bush administration, you’d instantly destroy whatever hopes you have of bipartisanship,” said Robert Litt, a former Justice criminal division chief during the Clinton administration. A new commission, on the other hand, could emulate the bipartisan tone set by Tom Kean and Lee Hamilton in investigating the 9/11 attacks. The 9/11 panel was created by Congress. An alternative model, floated by human-rights lawyer Scott Horton, would be a presidential commission similar to the one appointed by Gerald Ford in 1975 and headed by Nelson Rockefeller that investigated cold-war abuses by the CIA.

The idea of such panels is not universally favored among Obama advisers. Some with ties to the intelligence community fear the demoralizing impact on intelligence officers, said one source who had discussions with Obama aides about the idea.

I’d note that the Rockefeller and 9/11 commissions were, along with the Warren Commission, some of the most ineffective investigations of all time. In some sense, these commissions are designed to tackle a troubling issue, shine some light on it, and then assign it to the dustpin of history. They are less concerned with getting to the truth than in giving the impression that they have gotten to the truth. The Warren Commission was so unconvincing that Congress was forced to authorized two separate revisitations (one in the 1970’s and one in the 1990’s). The Rockefeller Commission was Ford/Rumsfeld/Cheney’s strategy for countering the investigations of Sen. Frank Church’s (D-ID) Church Committee and Rep. Otis Pike’s (D-NY) Pike Committee. It was a whitewash. The 9/11 Commission (which was necessitated by an unconvincing Joint Congressional investigation) left so many unanswered questions that conspiracy theories have blossomed to a degree not seen since the failure of the Warren Commission. It’s fine to have a commission, but a successful commission puts questions to rest. If you can’t put questions to rest, you shouldn’t bother with a commission.

Yet, the motivation for a commission on counterterrorism policy is not confined to getting to the truth. The United States has a strong interest in rehabilitating its image abroad as a staunch defender of human rights. Many would argue that War Crimes trials are the only way to do that, and that might be true in an absolute sense. But Obama’s advisers are probably looking for a middle ground where it is clear that we are going to expose some of the truth, forcefully repudiate what was done, and pass laws to assure it doesn’t happen again. Closing Guantanamo Bay is another part of the same rehab program. There’s merit in this strategy, even if it doesn’t go far enough for my tastes.

I even have some sympathy for the view that the Obama campaign doesn’t want to get off on the wrong foot with the Intelligence Community. But, my sympathy is limited. What I would not want to see is intelligence officers taking the fall for a policy that was authorized at the highest levels. If there are going to be any scalps, those scalps should start all the way at the top and work their way down. We don’t need a pound of flesh, we need justice.

Criminalizing eight years of U.S. foreign policy isn’t feasible…at least, not unless that is going to be the primary and only legacy of Obama’s presidency. Having said that, any commission should have the power to refer any crimes it finds to the Justice Department. This is especially true of any perjury and/or obstruction of the investigation itself.

I’ve studied this country long enough to know that a whitewash commission is probably the most we can hope for. But even with such a commission, there’s a difference between a good one (Church) and a bad one (Rockefeller).

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