For You D.

Torture and the 'Truth Commission'

Why has Congress failed to outlaw waterboarding?

By WILLIAM MCGURN

Sen. Patrick Leahy (D., Vt.) wants a commission that will get to the "truth" about torture. House Speaker Nancy Pelosi (D., Calif.) says she wants a truth commission too. And so does Rep. John Conyers (D., Mich.).

On CBS's "Face the Nation" on Sunday, Mr. Leahy said a truth commission would help get to the heart of how the recently released memos on CIA interrogation techniques were drafted. "I want to know why they did that," he said. "What kind of pressures brought them to write things that are so off the wall and to make sure it never happens again. That's why I want [a Truth Commission]."

Mr. Leahy overlooks a small point here: Under our Constitution, the truth commission is supposed to be Congress.

Our Founders didn't look to outsource our most controversial public issues to appointees. They established institutions and arrangements that would hold those who have power accountable to the American people. And when the people's lawmakers believed the people's president was misinterpreting the law, the Founders expected the former to stand up and do something about it.

Over the past few years, the Democrats have moved to ban waterboarding only when it was clear that such a bill would not pass -- or would be vetoed by George W. Bush. In September 2006, Sen. Edward Kennedy introduced an amendment to the Military Commissions Act that would have effectively defined waterboarding as a war crime, and it was defeated largely along partisan lines. In February 2008, when Democrats were in control of Congress, they made a big fuss about sending a bill that would have limited interrogation to techniques found in the Army field manual. They did so knowing President Bush would veto it, and that he had the votes to sustain that veto.

Today the Democrats have an even larger majority -- plus a president who would sign such legislation. So why the call for a truth commission instead? The answer is a nasty one: If Congress made waterboarding illegal now, they would be making clear that it was not illegal before.

Andrew McCarthy is the former assistant U.S. attorney who put Omar Abdel-Rahman (the blind sheik) behind bars for the first bombing of the World Trade Center in 1993. Mr. McCarthy explained it this way to me: "When Senate Democrats didn't have the votes, they voted to make waterboarding illegal. Now they have the votes, but there's no effort to ban waterboarding. And the reason is that they are more interested in setting off a partisan witch hunt than passing a principled ban on something they say is torture."

In other words, what the Beltway has planned is a circus -- where the decks are stacked, people are smeared, and conclusions are foregone. In such an environment, the only way to restore some sense of fairness is with fuller and more honest disclosure. Here are a few places to start.

First, former vice president Dick Cheney has called for the release of classified memos that he says show the CIA's interrogation program produced valuable intelligence that helped us break up terrorist plots and save innocent lives. Though CIA Director Dennis Blair fudged his own answer to Mr. Cheney's claim by issuing two separate statements -- one for public consumption, one for internal use -- he did concede that the program yielded "high value" intelligence. Since then, we've had nothing but claims and counterclaims. How about releasing the info and allowing the American people to judge?

Second, Mrs. Pelosi has categorically declared the CIA never told her waterboarding was being used. "My experience was they did not tell us they were using that, flat out," she recently told reporters. "And any, any contention to the contrary is simply not true."

Her claim puts her at odds with Porter Goss, a former CIA director who had at the time of the briefings served on the same House Intelligence Committee with Mrs. Pelosi. In an op-ed for the Washington Post on Saturday, Mr. Goss said he was "slack-jawed to read that members claim to have not understood that the techniques on which they were briefed were to actually be employed."

Surely the CIA kept notes about those briefings. How about releasing the record -- how many briefings there were, when they occurred, who was at them, what was said, how our political representatives reacted -- and let the people judge who's telling the truth?

Finally, thus far all the focus has been on the techniques approved by the White House. The impression is that Mr. Bush allowed every technique to go forward. How about releasing any memos that speak to techniques that were rejected -- and the reasons? If there's information in any of these classified documents we don't want our enemies to see, they can easily be redacted on a case-by-case basis.

And if after all this, members of Congress still insist that waterboarding is a war crime, maybe they could explain to the American people why they don't just go ahead and outlaw it.

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