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As Democratic leaders struggle over what to do about the Bush administration’s past abuses, Senate Judiciary Committee Chairman Patrick Leahy joined those advocating a “truth and reconciliation commission” that would seek facts, not jail time.

“We could develop and authorize a person or group of people universally recognized as fair minded, and without axes to grind,” Leahy said during a speech at Georgetown University’s Law Center on Monday. “Their straightforward mission would be to find the truth” about controversies such as torture of detainees and warrantless wiretaps.

“People would be invited to come forward and share their knowledge and experiences, not for purposes of constructing criminal indictments, but to assemble the facts. If needed, such a process could involve subpoena powers, and even the authority to obtain immunity from prosecutions in order to get to the whole truth,” the Vermont Democrat said.

Later Monday, asked whether he would support Leahy’s plan, President Barack Obama declined comment, saying he was unfamiliar with it. He then reiterated his ambiguous response from the campaign, that no one is above the law but that he favored looking forward, not backward.

“What I have said is that my administration is going to operate in a way that leaves no doubt that we do not torture that we abide by the Geneva Conventions and that we observe our traditions of rule of law and due process as we are vigorously going after terrorists that can do us harm,” Obama said at his first prime-time news conference as President.

"My view is also that nobody is above the law, and if there are clear instances of wrongdoing than people should be prosecuted just like any ordinary citizen. But generally speaking I am more interested in looking forward than I am in looking backwards.”

Leahy is expected to introduce a bill soon that would create his proposed truth commission. Last month, Leahy’s counterpart in the House, Rep. John Conyers, sponsored similar legislation to create a blue-ribbon panel of outside experts to probe the “broad range” of policies pursued by the Bush administration “under claims of unreviewable war powers.”

But Conyers also has called for the appointment of an independent counsel to launch a criminal probe into the Bush administration’s policies. Leahy said his plan would be designed to meet public demands for accountability but not lead to prosecutions of any sort.

The dilemma of how to proceed on Bush administration crimes became more acute in the last two months when President George W. Bush and Vice President Dick Cheney admitted publicly that they had personally authorized the waterboarding of at least three suspected terrorists and allowed interrogators to use harsh methods against 33 other suspects.

Though Bush and Cheney continued to insist that their actions did not violate anti-torture laws, waterboarding – a technique that makes the victim believe he is drowning – has been regarded as torture at least since the Spanish Inquisition and has been treated as a serious war crime by the U.S. government in the past.

As recently as the 1980s, a Texas sheriff was prosecuted by the Justice Department for using waterboarding to extract confessions from suspects.

Many rank-and-file Democrats and constitutional scholars have argued that criminal prosecutions of senior Bush administration officials are the only meaningful way to achieve accountability. Otherwise, they argue, the United States is making a mockery of the core American principle that “no man is above the law” as well as the nation’s historic leadership on human rights.

Some human rights experts also note that U.S. commitments under international law require legal action against anyone implicated in torture, either by prosecuting those responsible in the country or by turning them over to international courts.

Stopping at Facts

However, the inclination among Democratic leaders in Congress and the Obama administration has trended toward fact-finding and nothing more, a position expressed by Leahy.

“We need to come to a shared understanding of the mistakes of the past,” Leahy said.  “Rather than vengeance, we need a fair-minded pursuing of what happened. ... I don't want to embarrass anybody. I don't want to punish anybody. I just want the truth to come out so this never happens again.”

Leahy said the commission, whose membership could either be congressional or presidential appointees, would have subpoena power and could grant witnesses immunity from prosecution in exchange for their testimony about how some of the Bush administration's most controversial policies were formed.

"As to the best course of action for bringing a reckoning for the actions of the past eight years, there has been heated disagreement,” Leahy said. “There are some who resist any effort to investigate the misdeeds of the recent past.

“Indeed, some Republican senators tried to extract a devil’s bargain from the Attorney General nominee in exchange for their votes, a commitment that he would not prosecute for anything that happened on President Bush’s watch. That is a pledge no prosecutor should give, and Eric Holder did not, but because he did not, it accounts for many of the partisan votes against him."

Last month, Senate Majority Leader Harry Reid said he would support funding and staff for additional inquiries by the Senate Armed Services Committee, which recently released a report tracing abuse of detainees at Guantanamo Bay and Abu Ghraib to Bush’s Feb. 7, 2002, decision to exclude terror suspects from Geneva Convention protections.

Additionally, Sen. Sheldon Whitehouse, D-Rhode Island, a former federal prosecutor and a member of the Senate Judiciary and Intelligence committees, said during a human rights conference two weeks ago that, “we need to follow this thing into those dense weeds and shine a bright light into what was done.”

Whitehouse added: “We can paper it over if we choose, but the blueprint is still lying there for others to do it all over again. It’s important that we not let this moment pass.”

On Monday, Whitehouse said Leahy "summed up a belief shared by millions of Americans: that we need to ‘get the truth out’ about the damage done to this country under the Bush Administration, and what we now must do to repair it."

Democratic Majority Leader Steny Hoyer of Maryland told reporters: "Looking at what has been done is necessary.”  And House Speaker Nancy Pelosi expressed support for Conyers’s plan to create a blue-ribbon panel.

Attorney General Eric Holder said during his confirmation hearing that “waterboarding is torture,” but the Obama administration has hesitated to launch new investigations of the Bush administration’s crimes partly out of fear that would infuriate Republicans who might retaliate by obstructing Democratic economic plans during a deepening recession.

Incoming CIA Director Leon Panetta said during his confirmation hearing last week that the Obama administration would not seek to prosecute CIA interrogators who performed brutal techniques, such as waterboarding, against detainees.

Panetta told The Associated Press in an interview after his confirmation hearing that “we just can't operate if people feel even if they are following the legal opinions of the Justice Department they could be in danger of prosecution.”

However, the authors of those legal memos, John Yoo and Jay Bybee, are under investigation by a Justice Department watchdog who is probing “whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys.”

Though Leahy shunned the notion of criminal prosecutions, his proposal for a truth commission on Monday was still met with contempt from Republicans.

"No good purpose is served by continuing to persecute those who served in the previous administration," said Rep. Lamar Smith, R-Texas. "President Obama promised to usher in an era of ‘change’ and bipartisan harmony. Unfortunately, the continued effort by some Democrats to unjustly malign former Bush Administration officials is politics as usual."

Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.

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