Following the paper trail to the top
COMMENTARY | May 06, 2009
We're learning more about the decisions that were made by the last administration, but we still don't know nearly enough about how they were made and who exactly made them, says Caroline Fredrickson of the ACLU. If you really believe in the rule of law – and that no one is above the law -- then you've got to bring accountability to the top of the chain of command. Fifth in a series of articles calling attention to the things we still need to know about torture and other abuses committed by the Bush administration after 9/11.
Digging through e-mails, memos, minutes, calendars and other documentary evidence will be a critical part of any investigation into Bush administration abuses, says Caroline Fredrickson, the director of the American Civil Liberties Union’s Washington Legislative Office.
That’s because the goal of such an investigation – either criminal or civil – should be to determine who was the highest-level person who consciously chose to disregard the law.
“The paper trail is going to be really important,” Fredrickson says. Even if the principals were careful about not leaving their fingerprints behind, the paper trail could still contain “any number of signs” of how decisions were made and who the decision-makers were. “It’s hard for people to destroy every piece of evidence,” she says.
Looking at such things as “who’s included on the cc: list?” and “whose question is being answered?” could help “illuminate how involved the White House was, how much they determined the outcome, and how conscious they were of disregarding the law,” Fredrickson says.
When it comes to the recently-disclosed Justice Department Office of Legal Counsel memos approving interrogation techniques that undeniably amount to torture, for instance, the operative question is now: Who ordered those opinions?
“The goal ultimately for us is to hold people accountable,” Fredrickson says. “If you care about insuring that our government doesn’t commit human rights abuses, you need to make sure that there is some level of accountability for people who do in fact break the law in that way.”
And it’s not just about human rights. “If you really want to make sure that there is rule of law, you need to make sure that the people who are at the top are abiding by the law,” Fredrickson says.
Warrantless surveillance, along with torture, has been a major ACLU priority. And Fredrickson points out that we actually know way more about the Bush administration’s interrogation techniques than we do about the extent to which it spied on American citizens without court approval.
One of the mysteries among many has to do with what the program was like before James Comey and other Justice Department officials staged their famous rebellion in March 2004, threatening to quit unless the White House rolled back certain aspects of the program. “What was that about? We still don’t know that exactly,” says Fredrickson. There’s been some speculation that the government dialed back some particularly egregious form of data mining, but it’s never been confirmed.
In June 2008, Congress voted to amend the Foreign Intelligence Surveillance Act to officially give Bush sweeping authorities he had previously claimed on his own – but the precise impact of that law remains unclear to the public, and its reporting requirements are few and far between. What sorts of communications can now be surveilled without a warrant? How much data is the government allowed to collect and mine? We don’t know. “We don’t know anything about what they’re doing, because they were given such sweeping powers,” Fredrickson says. “It’s pretty much anything goes, and we just want to know is anything going?...
“The public needs to know,” she says. “We have seen times when there was an unfettered ability to engage in surveillance, and that was misused…. At the very least, you need to know what has been going on, and you need to be able to rely on the oversight mechanisms that have been put in place to protect against those kinds of abuses.”
The ACLU favors criminal investigation and congressional investigation over some sort of independent commission investigation. In part, that’s because an independent commission raises concerns about separation of powers. But the main point, Fredrickson says, is that “we believe that Congress actually has to do the hard work of oversight.” And that includes taking a good hard look at itself – “owning up to its own lack of oversight” during such a critical period. The ideal venue, she says, would be some sort of congressional select committee – like the Church Committee, the special Senate committee that from 1975 to 1976 exposed widespread intelligence abuses by the FBI, the CIA and the NSA. The ACLU also strongly opposes any civil investigation that would give any witnesses immunity from criminal prosecution.
The public outrage over torture seems to be growing with every disclosure, and yet it remains a real possibility that there will be no authoritative investigation into the abuses of the Bush years. “It is really frustrating not to be able to get people to treat this as a crisis,” Fredrickson says. “Our government engaged in torture. There were vast human rights abuses that took place during the Bush administration. And we’re just moving on?”
-- Dan Froomkin
05/07/2009, 10:16 AM
The ACLU is absolutely correct in demanding a criminal prosecution of the war criminals in the Bush Administration(All of them!). Just the fact that Congress removed the criminality of the breaking the FISA law set up after Nixon was investigated indicates that they're not up to actually doing their job.
Of course, "The Buck Stops Here" doesn't apply because that statement was made by Truman, who apparently was a tad more honest than the criminals that operated from 2000 to late 2008 in the White House. The fact that the Supreme Court gave the presidency to GWB indicates that they aren't up to this job either.
Any cover-up up of this fact, like the fact that one of the legal minds who wrote the "torture memos, obviously at the demand of Unka Dicky headed the Justice Dept.'s report makes it pretty obvious that Obama's Justice Dept won't actually perform their jobeither. Since Diane Feinstein is my senator and she bent over for GW his entire reign(say Dino). For example she thought that his "Healthy Forests" Initiative was a wonderful solution to clean (out) the forests when in fact there were local reports that the companies hired took the primarily good timber, not the dead and down.
So let's have a special prosecutor, appointed immediately. As a "gift" to the Repugnican'ts, I suggest Patrick Fitzgerald. I think he's demonstrated that he knows the rule of law and will follow the investigation to wherever it leads.