Let’s Be Honest About the Truth Commission

Posted March 4, 2009 at 6:22pm

On the Jan. 11 Sunday morning show “This Week with George Stephanopoulos,— Barack Obama stated that “we need to look forward as opposed to looking backward.— Unfortunately, this position and his repeated calls for bipartisanship have rung hollow for the party that he leads.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has announced that he intends to use that committee’s time to create a commission to look backward at the eight years of President George W. Bush’s counterterrorism policies that have proved to be instrumental in preventing an attack on the homeland after Sept. 11. I believe this commission would be dangerous because it would return the intelligence community to its risk-averse days prior to Sept. 11 and would set the precedent for commissions to investigate current and future administrations.

Both the 9/11 commission and the Weapons of Mass Destruction Commission found that our intelligence failures with respect to the Sept. 11 attacks and the Iraq WMD case were directly attributable to a risk-averse intelligence community. It logically follows that the intelligence community must be encouraged to take risks to prevent future attacks on the homeland and to penetrate our enemies’ WMD programs. Those commissions then suggested ways to encourage the intelligence community to be more proactive. They most assuredly did not recommend that intelligence community operatives and Justice Department lawyers be subject to intensive investigation by backward-looking commissions with the benefit of hindsight and with no appreciation for the context in which difficult decisions were made.

It is not too difficult to imagine a scenario in which the creation of Leahy’s commission greatly hinders the operation of the military or intelligence community. For example, interrogators after Sept. 11 sought critical intelligence information from captured enemy combatants — information that proved invaluable in preventing follow-on attacks against the homeland.

Questioning their activities now, many years later, can easily have a chilling effect on intelligence community operatives. When faced with the prospect of being humiliated before a “truth squad— and, perhaps, ultimately being sent to prison, intelligence community operatives may not take the risks previous commissions have encouraged them to take, or worse yet, they may choose not to volunteer at all to serve in harm’s way in a time of war.

Despite what Leahy may say, it is not an exaggeration to raise the prospect of prison for those who may be called before this truth squad. In speaking about his truth commission, Leahy has praised the Church Committee, which should belie the assertion that he makes that his commission is “not for the purpose of constructing criminal indictments.— Former President Jimmy Carter’s Justice Department used the findings of the Church Committee to prosecute two senior FBI officials for violations of the civil liberties of Weather Underground members.

Very shortly after 9/11, novelist Tom Clancy noted how policies adopted in the wake of the Church Committee gutted the capabilities of the CIA. As Clancy described, “the intelligence community was successfully assaulted for actions taken under constitutionally mandated orders, and with nothing left to replace what was smashed, warnings we might have had to prevent this horrid event never came.—

Given that Leahy has already decided that Bush’s counterterrorism policies were “mistakes,— “abuses— and “excesses,— it is easy to see that the intelligence community is again under assault.

As the horrific events of 9/11 recede further from our memory, that space is being filled with a tendency to impugn the policies that were vital to preventing a recurrence of that event. For example, Obama has already effectively ended the CIA interrogation program and plans to close the Guantánamo Bay detention facility in a year without a hint of where the about 250 detainees remaining there would go.

The demonization and second-guessing of the intelligence community in the 1970s led to its loss of capabilities and inability to detect and prevent the terrorist attacks of Sept. 11. Creating a truth commission today to repeat those very same mistakes would return the intelligence community to the risk-averse state in which it floundered prior to the 9/11 attacks.

Sen. John Ensign (Nev.) is a member of the Homeland Security and Governmental Affairs Committee and chairman of the Senate Republican Policy Committee.