[Congressional Record: February 25, 2009 (Senate)]
[Page S2461-S2463]                        

                         COMMISSION OF INQUIRY

  Mr. LEAHY. When historians look back at the last 8 years, they are 
going to evaluate one of the most secretive administrations in the 
history of the United States. Now, the citizens of this country have 
said we should have change, and we should. But we also know that the 
past can be prologue unless we set things right.
  In the last administration, there was a justification for torture. It 
presided over the abuse at Abu Ghraib, destroyed tapes of harsh 
interrogations, and conducted extraordinary renditions that sent people 
to countries that permit torture during interrogation.
  They used the Justice Department, our premiere law enforcement 
agency, to subvert the intent of congressional statutes, even to 
subvert nonpartisan prosecutions, and instead to use them in partisan 
ways to try to affect the outcome of elections. They wrote secret law 
to give themselves legal cover for these misguided policies, policies 
that could not withstand scrutiny if brought to light.
  Nothing has done more to damage America's standing and moral 
authority than the revelation that during the last 8 years we abandoned 
our historic commitment to human rights by repeatedly stretching the 
law and the bounds of Executive power to authorize torture and cruel 
  As President Obama said to Congress and the American people last 
night, ``if we're honest with ourselves, we'll

[[Page S2462]]

admit that for too long we have not always met'' our responsibilities.
  Now, the President said that about the economy, but the same holds 
true here. It is only by understanding how we arrived at this moment 
that we can move forward. How can we restore our moral leadership and 
ensure transparent government if we ignore what has happened?
  There has been discussion, and in some cases disagreement, on how 
best to do this. There are some who resist any effort to investigate 
the misdeeds of the recent past. Indeed, some have tried to extract a 
devil's bargain from Attorney General Holder, 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, to his credit, 
Eric Holder did not.
  There are others who say that regardless of the cost in time, 
resources, and unity, we have to prosecute these administration 
officials to lay down a marker. The courts are already considering 
congressional subpoenas that have been issued and claims of privilege 
and legal immunities, and they will for some time.
  Over my objections, Congress has already passed laws granting 
immunity to those who facilitated warrantless wiretapping and conducted 
cruel interrogations. The Department of Justice issued legal opinions 
justifying these executive branch excesses which, while legally faulty, 
would undermine attempts to prosecute. A failed attempt to prosecute 
for this conduct might be the worst result of all if it is seen as 
justifying abhorrent actions. Given the steps Congress and the 
executive have already taken to shield this conduct from 
accountability, that is a possible outcome.

  The alternative to these approaches is a middle ground, a middle 
ground I spoke of at Georgetown University a little over 2 weeks ago. 
That middle ground would involve the formation of a commission of 
inquiry dedicated to finding out what happened. Such a commission's 
objective would be to find the truth. People would be invited to come 
forward and share their knowledge and experiences, not for the purpose 
of constructing criminal indictments, but to assemble the facts, to 
know what happened and to make sure mistakes are not repeated.
  I have seen what happened before in prosecutions. We don't find the 
full truth. We prosecute those at the bottom of the chair of command, 
but we don't find out what those above did.
  While many are focused on whether crimes were committed, it is just 
as important to learn if significant mistakes were made, regardless of 
whether they can be proven beyond a reasonable doubt to a unanimous 
jury to be criminal conduct. We compound the serious mistakes already 
made if we limit our inquiry to criminal investigations and trials. 
Moreover, it is easier for prosecutors to net those far down the ladder 
than those at the top who set the tone and the policies. We do not yet 
know the full extent of our government's actions in these areas, and we 
must be sure that an independent review goes beyond the question of 
whether crimes were committed, to the equally important assessment of 
whether mistakes were made so we may endeavor not to repeat them. As I 
have said, we must read the page before we turn it.
  Vice President Dick Cheney continues to assert unilaterally that the 
Bush administration's tactics, including torture, were appropriate and 
effective. But interested parties' characterizations and self-serving 
conclusions are not facts and are not the unadulterated truth. We 
cannot let those be the only voices heard, nor allow their declarations 
to serve as historical conclusions on such important questions. An 
independent commission can undertake this broader and fundamental task.
  I am talking about this process with others in Congress, with outside 
groups and experts, and I have begun to discuss this with the White 
House as well. I am not interested in a commission of inquiry comprised 
of partisans, intent on advancing partisan conclusions. Rather, we need 
an independent inquiry that is beyond reproach and outside of partisan 
politics to pursue and find the truth. Such a commission would focus 
primarily on the subjects of national security and executive power in 
the government's counterterrorism effort. We have had successful 
oversight in some areas, but on these issues, including harsh 
interrogation tactics, extraordinary rendition and executive override 
of the laws, the last administration successfully kept many of us in 
the dark about what happened and why.
  President Obama issued significant executive orders in his first days 
in office, looking to close Guantanamo and secret prisons, banning the 
use of harsh interrogation techniques and forming task forces to review 
our detainee and interrogation policies. I support his decisions, and I 
am greatly encouraged by his determination to do the hard work to 
determine how we can reform policies in these areas to be lawful, 
effective and consistent with American values. My proposal for a 
commission of inquiry would address the rest of the picture, which is 
to understand how these types of policies were formed and exercised in 
the last administration, to ensure that mistakes are not repeated. I am 
open to good ideas from all sides as to the best way to set up such a 
commission and to define its scope and goals.
  A recent Gallup poll showed that 62 percent of Americans favor an 
investigation of these very issues. Respected groups including Human 
Rights First, the Constitution Project and thoughtful Senators, 
including Senator Whitehouse and Senator Feingold, have also embraced 
this idea. The determination to look beyond the veil that has so 
carefully concealed the decision making in these areas is growing. Next 
Wednesday, the Judiciary Committee will hold a hearing to explore these 
ideas and to continue the conversation about what we can do moving 
  Two years ago I described the scandals at the Bush-Cheney-Gonzales 
Justice Department as the worst since Watergate. They were. We are 
still digging out from the debris they left behind while those in the 
last administration continue to defend their policies, knowing full 
well that we do not even know the full extent of what those polices 
were or how they were made. We cannot be afraid to understand what we 
have done if we are to remain a nation equally vigilant in defending 
both our national security and our Constitution. I hope all Members of 
Congress will give serious consideration to these difficult questions.
  I argue it will be the quintessential American thing to do.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, during my brief tenure so far in the 
Senate, the Judiciary Committee has confronted many difficult issues, 
battles over judicial nominees, complex legislative matters, a historic 
investigation into misdeeds of the Bush administration's Department of 
Justice. In that process, the committee saw U.S. attorneys fired for 
political reasons, the Civil Rights Division run amok, declassified 
legal theories asserting that the President can secretly ignore his own 
executive orders. We saw unprecedented politicization of a noble 
department, and we saw those Office of Legal Counsel memos approving 
interrogation techniques long understood, long known to be torture. 
Fortunately, throughout that time, Chairman Leahy sought answers. His 
efforts were evenhanded but unyielding. We know so much of what we know 
now because Patrick Leahy was satisfied with nothing less than the 
whole truth.
  Today his work continues, and I wish to speak in support of his 
efforts. The backdrop is, of course, a grim one. Over and over, as I 
travel around my State of Rhode Island, I hear from people facing 
challenges that seem almost insurmountable, challenges President Obama 
spoke about in his address to Congress last evening. Every day it gets 
harder and harder to find a job, to pay the bills, to make ends meet. 
Every day it seems more difficult to see a way out. The Bush 
administration left our country deeply in debt, bleeding jobs overseas, 
our financial institutions rotten and weakened and an economy in free-
fall. This is the wreckage we see everywhere, in shuttered plants, as 
my colleague from Pennsylvania sees at home so cruelly, in long lines, 
and in worried faces. But there is also the damage we cannot see so 
well, the damage below the water line of our democracy, damage caused 
by a systematic effort to twist policy to suit

[[Page S2463]]

political ends; to substitute ideology for science, fact, and law; and 
to misuse instruments of power.
  If an administration rigged the intelligence process and, on faulty 
intelligence, sent our country to war, if an administration descended 
to interrogation techniques of the Inquisition, of Pol Pot and the 
Khmer Rouge, descended to techniques that we have prosecuted as crimes 
in military tribunals and in Federal courts, if institutions as noble 
as the Department of Justice and as vital as the Environmental 
Protection Agency were subverted by their own leaders, if the integrity 
of our markets and the fiscal security of our budget were open wide to 
the frenzied greed of corporations and speculators and contractors, if 
taxpayers were cheated and the forces of Government rode to the rescue 
of the cheaters and punished the whistleblowers, if our Government 
turned the guns of official secrecy against our own people to mislead, 
confuse, and propagandize them, if the integrity of public officials, 
the warnings of science, the honesty of Government procedures and the 
careful historic balance of our separated powers all were seen as 
obstacles to be overcome and not attributes to be celebrated, if the 
purpose of Government became no longer to solve problems but simply to 
work them for political advantage, and a bodyguard of lies and jargon 
and propaganda was emitted to fool and beguile the American people, 
something very serious would have gone wrong in our country.
  Such damage must be repaired. I submit that as we begin the task of 
rebuilding this Nation, we have a duty to our country to determine how 
great that damage is. Democracy is not a static institution. It is a 
living education, an ongoing education in freedom of a people.
  As Harry Truman said, addressing a joint session of Congress back in 

       One of the chief virtues of a democracy is that its defects 
     are always visible, and under democratic processes can be 
     pointed out and corrected.

  We have to learn the lessons from this past carnival of folly, greed, 
lies, and wrongdoing so the damage can, under democratic processes, be 
pointed out and corrected. If we bind ourselves to this history, we 
deny ourselves its lessons, lessons that came at too painful a cost to 
  Those lessons merit disclosure and discussion. Indeed, disclosure and 
discussion makes the difference between this history being a valuable 
lesson for the bright and upward forces of our democracy or a blueprint 
for those darker forces to return and someday do it all over again. As 
we work toward a brighter future ahead, to days when jobs return to our 
cities, capital to our businesses, and security to our lives, we cannot 
set aside our responsibility to take an accounting of where we are, 
what was done, and what must now be repaired. We also have to brace 
ourselves for the realistic possibility that as some of this conduct is 
exposed, we and the world will find it shameful, revolting. We may have 
to face the prospect of looking with horror at our own country's deeds.
  We are optimists, we Americans. We are proud of our country. 
Contrition comes hard to us. But the path back from the dark side may 
lead us down some unfamiliar valleys of remorse and repugnance before 
we can return to the light. We may have to face our fellow Americans 
saying to us: No, please, tell us we did not do that, tell us Americans 
did not do that. And we will have to explain somehow.
  This is no small feat and not easy. This will not be comfortable or 
proud, but somehow it must be done.
  Chairman Leahy has embarked on the process of considering a new 
commission, one appropriate to the task of investigating the damage the 
Bush administration did to America, to her finest traditions and 
institutions, to her reputation and integrity. The hearing he has 
called in coming days will more thoroughly examine this question to 
help us determine how best to move forward. I stand with him. Before we 
can repair the harm of the last 8 years, we must learn the truth.