SEN. PATRICK LEAHY

JUAN GONZALEZ: On Capitol Hill, debate has begun over forming a truth commission to shed light on the Bush administration’s secret polices on detention, interrogation and domestic spying. A hearing on the issue was held Wednesday, two days after the Obama administration released a series of once-secret Bush administration Justice Department memos that authorized President Bush to deploy the military to carry out raids inside the United States. The author of the memos, John Yoo, said Bush could disregard the First and Fourth Amendments of the Constitution.

During a Senate Judiciary Committee hearing on Wednesday, committee chair Patrick Leahy said the newly released memos highlight the need for a truth commission.

       SEN. PATRICK LEAHY: Vice President Dick Cheney and others from the Bush administration continue to assert that their tactics, including torture, were appropriate and effective. I don’t think we should let only one side define history on such important questions. It’s important for an independent body to hear these assertions, but also for others, if we’re going to make an objective and independent judgment about what happened and whether it did make our nation safe or less safe.

Just this week, the Department of Justice released more alarming documents from the Office of Legal Counsel demonstrating the last administration’s pinched view of constitutionally protected rights. The memos disregarded the Fourth and First Amendment, justifying warrantless searches, the suppression of free speech, surveillance without warrants, and transferring people to countries known to conduct interrogations that violate human rights. How can anyone suggest such policies do not deserve a thorough, objective review?

I am encouraged that the Obama administration is moving forward. I’m encouraged that a number of the things that—number of the issues we’ve been stonewalled on before are now becoming public. But how did we get to a point where we were holding a legal US resident for more than five years in a military brig without ever bringing charges against him? How did we get to a point where Abu Ghraib happened? How did we get to a point where the United States government tried to make Guantanamo Bay a law-free zone, in order to deny accountability for our actions? How did we get to a point where our premier intelligence agency, the CIA, destroyed nearly a hundred videotapes with evidence of how detainees were being interrogated? How did we get to a point where the White House could say, “If we tell you to do it, even if it breaks the law, it’s alright, because we’re above the law”?

AMY GOODMAN: Senator Patrick Leahy, the chair of the Senate Judiciary Committee. At Wednesday’s hearing, several Republican senators and witnesses opposed the creation of a truth commission. This is attorney David Rivkin.

        DAVID RIVKIN: There’s another large problem that looms in my view. It’s important to recognize that the commission’s most deleterious and dangerous impact would be to greatly increase the likelihood of former senior US government officials being tried overseas, whether in courts of foreign nations or through international tribunals. And the reason for it is because the matters to be investigated by the commission implicate not only US criminal statues but also international law and which are arguably subject to claims of universal jurisdiction by foreign states.

I have no doubt that foreign prosecutors would eagerly seize upon the supposedly advisory determination that criminal conduct occurred, especially if it is the only authoritative statement on the subject by an official US body as a pretext to commence investigations and bring charges against former government officials. If they were clever, and most of them are, they would argue that the mere fact that the commission was established vividly demonstrates that grave crimes must have been occurred and interpret UN non-prosecution of individuals concerned through formal prosecutorial channels as a mere technicality to be repaired by their own broad assertions of jurisdiction.

AMY GOODMAN: Human rights attorney Michael Ratner joins us now in the firehouse studio, president of the Center for Constitutional Rights, author of the book The Trial of Donald Rumsfeld, among others.

Welcome to Democracy Now! I want to talk about the secret memos. Let’s start with this hearing that has been called by Patrick Leahy, chair of the Senate Judiciary Committee, calling for an investigation into Bush administration crimes.

MICHAEL RATNER: You know, I won’t say I’m exactly biased here, but I think essentially that the Leahy commission is an excuse for non-prosecution. It’s essentially saying, “Let’s put some stuff on the public record. Let’s immunize people. And then,” as he even said, “let’s turn the page and go forward.” That’s really an excuse for non-prosecution. And in the face of what we’ve seen in this country, which is essentially a coup d’etat, a presidential dictatorship and torture, it’s essentially a mouse-like reaction to what we’ve seen. And it’s being set up really by a liberal establishment that is really, in some ways, in many ways, on the same page as the establishment that actually carried out these laws. And it’s saying, “OK, let’s expose it, and then let’s move on.”

And he even says, he says what we’re going to do with the truth commission is we’re going to look and see what mistakes were made. I mean, just ask the hundred people who were tortured in the secret sites about what mistakes were made, or ask the 750 people at Guantanamo, or ask the people at Abu Ghraib. This is not about mistakes. This is about fundamental lawbreaking, about the disposal of the Constitution, and about the end of treaties. So I think, actually, that Leahy’s current proposal is extremely dangerous. I call it the lame commission or basically an excuse for non-prosecution.

JUAN GONZALEZ: And you think that there’s no essential difference between him and the Obama—the White House position at this point?

MICHAEL RATNER: You know, I don’t think he would be out there without the Obama administration at least saying this is maybe a way to go. Look at, there’s a lot of pressure in this country right now for prosecutions. I mean, the polls indicate that people want to see a criminal investigation. We’ve had open—open and notorious admissions of waterboarding by people like Cheney. And we know that waterboarding is torture, even according to Obama.

So, how do you diffuse that pressure? And one way you diffuse it is you set up a, quote, “truth commission” that’s going to give immunity to people. And then, as Leahy himself says—the word he used, I think, is that he objects to those “fixated” on prosecution. Well, you know, it’s a legal requirement that you prosecute torturers in your country. And yet, he calls us “fixated” on it and wants to make this excuse. So I think this is, in a way—you don’t know this—but in conjunction with the Obama administration saying, “Let’s do this. It will dispose of, you know, the human rights groups in the world and others. And let’s go forward.”

JUAN GONZALEZ: And your assessment of these latest memos that the Justice Department has released, in terms of the further proof that they show possible criminal actions?

MICHAEL RATNER: I’m glad you said that, Juan, “further proof,” because, you know, we’ve known a lot of this from the beginning. You know, I remember, actually, six weeks after 9/11 writing an article called “Moving Toward a Police State (Or Have We Arrived?)” And we’ve certainly seen the effects of these memos. We’ve seen the military arrest Jose Padilla in the United States. We’ve seen them do that to al-Marri. We’ve seen torture. We’ve seen secret sites. We’ve seen warrantless wiretapping.

But what we see in these memos—and I recommend them to everybody, because you read these, you are seeing essentially the legal underpinnings of a police state or a dictatorship of the president. There’s no doubt about it. That’s what it is, and it’s not theoretical. These were the actual building blocks of what we had in this country for eight years, in which—and the one you mentioned when we opened, Juan, that what happened here was one of these memos said the military could operate in the United States, and operate in the United States despite the Posse Comitatus law, which prohibits the military from operating in the United States. And when it operates—this is really extraordinary—they can arrest and detain—“arrest” is not the right word—kidnap anyone they want and send them to a detention place anywhere in the world without any kind of law.

And then, on top of that, they can disregard the First Amendment. So this conversation we’re having right now, they could say, “Well, this is harmful to the national security of the United States”—that’s what these memos say—“this type of conversation is harmful, and we can ban this conversation.” And then they could put the military at the door to the firehouse and come in and say the Fourth Amendment, the one that protects us against unlawful searches, that the military could walk in here, search all of us and see if we have anything they don’t like on us. So, no First Amendment, no Fourth Amendment, no Fifth Amendment—essentially, the end of the Constitution and 225 years of constitutional history. In the face of this, this kind of memo, we’re seeing Leahy say, “Let’s see what kind of mistakes were made.”

AMY GOODMAN: Why was Posse Comitatus first put into effect, first passed?

MICHAEL RATNER: You know, that’s a good question. I don’t remember, Amy. It’s unfortunate I don’t remember. But it had to do—it goes back to our constitutional—the original convention, I mean, the original Constitution, that one of the biggest fears is that you don’t want the military operating in a democracy, because the military is not trained in constitutional rights. They’re trained to go in and kill and destroy, and that’s what they do in a country. And so, it was really—it came out of really the amendments that said you can’t quarter soldiers in your houses, all those kind—that kind of push that we don’t want the military enforcing law in this country.

AMY GOODMAN: Go on through the memos that have now been released.

MICHAEL RATNER: Well, I said that the key memo is this one that we’ve been discussing, this one that the military can operate in the United States. I mean, as I said, that’s really—you know, I used to talk about Fuehrer’s law when I talked about the President. Everybody thought I’m exaggerating. Fuehrer’s law is what the Fuehrer, Hitler, said; that’s the law. And what these memos do is essentially say that what Bush says is the law. So that’s memo number one.

There’s another memo here on extraordinary rendition. We’ve discussed it here before. That’s where you send people overseas for torture. You nab them or grab them in Pakistan or Afghanistan, send them to another country where it’s more likely than not where they’ll be tortured. And these memos go through why that may—the argument they make is that that’s not against the law, that the Convention Against Torture doesn’t apply and the anti-torture statute, you know, can be avoided by not having the intent to carry out torture. So they essentially authorize sending people—sending people for torture.

Then, two of the memos—and this is pretty interesting—actually concerned Jose Padilla. Jose Padilla, you remember, got off the plane in Chicago, the so-called dirty bomber, never charged with that, and when he’s in the prison, the military comes to the prison door. They knock. Maybe they knock. And they say, “Give us Jose Padilla.” And they grab him. This is in America. This is in the United States. And they take him, and for five years they put him in a military brig. Two of the memos justify and say the President had the power to do that to Jose Padilla, an American citizen living in the United States, that the military could come in—could come in and get him.

Then, a couple of these memos go to what—parts that we haven’t yet seen exposed, which I think will be a broad and vast intelligence effort in the United States, surveillance effort, done by the Department of Defense, under the auspices of these memos, to essentially surveil and look into what all of us are doing in the United States. That hasn’t come out yet completely, but it’s going to be in these memos.

And there’s another memo on the warrantless wiretapping that essentially says the commander-in-chief can carry out warrantless wiretapping as his commander-in-chief power.