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Pouring Acid On Democracy

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By DAVID B. RIVKIN JR. and LEE A. CASEY

Special to The Washington Post

Published: February 23, 2009

A growing chorus of critics is demanding the creation of a special commission to "investigate" the Bush administration's alleged abuses of power, especially prosecution of the war on terrorism. Senate Judiciary Committee Chairman Patrick Leahy called for a "truth commission," and House Judiciary Committee Chairman John Conyers Jr. has introduced legislation to establish a National Commission on Presidential War Powers and Civil Liberties.

For his part, President Obama has reacted coolly to calls to investigate Bush officials. Obama is right to be skeptical; this is a profoundly bad idea - for policy and, depending on how such a commission were organized and operated, legal and constitutional reasons.

Because of their unique organizations, these commissions often exist outside of the Constitution's three branches of government - as would be the case with Conyers' proposed National Commission on Presidential War Powers and Civil Liberties. Under that proposal, introduced in the House as H.R. 104, there would be nine members, one selected by the president and the others appointed by the congressional leadership. Its charge would be to "investigate relevant facts, circumstances and law surrounding" various Bush administration policies, including the use of enhanced interrogation methods and domestic "warrantless" electronic surveillance, and report its conclusions and recommendations to Congress and the president.

The Constitution requires that anyone exercising significant authority under federal law be appointed by the president with the Senate's advice and consent, or by department heads or the courts in the case of lower-level officials. So the commission would be unlawful if it served anything but an advisory role.

On its face, Conyers' proposed commission appears advisory, but many of its advocates clearly expect more than suggestions in the way of results. Conyers has suggested that the statutes of limitations applicable to criminal offenses for "torture" and "war crimes" be extended as part of his effort to rein in the imperial presidency. Leahy's model would be even more questionable, since that body would have the power to offer participants immunity from prosecution - usually an executive or congressional function. Clearly, much depends on how any such commission would operate and on the nature of its conclusions and recommendations.

In particular, any effort to determine individual criminal responsibility may undercut a commission's "advisory" nature because of the offenses at issue. At least some of these would also be violations of international law and, as such, arguably subject to claims of universal jurisdiction by foreign states.

A determination of criminal conduct - especially if it is the only "authoritative" statement on the subject by a U.S. governmental body - could serve as a pretext for the international prosecution of individuals. Doubtless, many advocates of such a commission, who also have been among the most vociferous Bush critics throughout the war on terrorism, hope for exactly that result.

They should think twice. Attempting to prosecute political opponents at home or facilitating their prosecution abroad, however much one disagrees with their policy choices while in office, is like pouring acid into our democratic machinery. As the history of the late, unlamented independent counsel statute taught, once a Pandora's box is opened, its contents can wreak havoc equally across the political and party spectrum.

If H.R. 104 or a similar bill is passed by Congress, Obama should nip in the bud this recipe for a continuing political vendetta and veto the legislation.

The writers are Washington lawyers who served in the Justice Department during the Ronald Reagan and George H.W. Bush administrations.

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