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by Joseph Zernik
Human Rights Alert DN: cn=Joseph
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Blog: http://human-rights-alert.blogspot.com/ Date: 2010.08.05
16:33:09 +03'00'
Scribd: http://www.scribd.com/Human_Rights_Alert

09-02-09 Transcript of Senator Leahy Call for a Truth and Reconciliation Commission in re:
United States Justice Department

It is great to be back at Georgetown. It was at the Law Center in December 2006 that I
first outlined the Senate Judiciary Committee’s agenda for the last Congress. It seems
fitting to return to the University at the start of the 111th Congress to take stock, and to
look forward. I thank Judge Katzmann for the opportunity to present this Marver
Bernstein Lecture.

What an exciting time to be an American, or to be a student, or to be a student at a great

university in America’s capital city – or all three. To those of you inspired by the
presidential election of 2008, I feel a special kinship. It was John Kennedy, another
young President almost 50 years ago, who inspired me to public service. I also had the
privilege of meeting his brother, Attorney General Robert Kennedy, when I was a law
student at Georgetown.

When I spoke two years ago at the Law Center, America was slogging ever deeper into the
difficult challenges that we face today. For awhile the pace was incremental. Today, as the
seriousness of these problems has become ever present in every American’s life, the pace
has quickened. But for the first time in a long time, there also are competing currents of
hope and possibility.

When I spoke at the Law Center two years ago we were a nation at a crossroads, and we
are still repairing the damage from those dark days. I spoke then about the erosion of
Americans’ privacy, and the need for us to restore our constitutional values and the rights
of ordinary Americans; about the importance of repairing a broken oversight process and
instilling greater accountability, and about renewing the public’s confidence in our justice
system. Over the last two years, that is what we have begun to do.

Our work included a steadfast inquiry into the U.S. Attorney firing scandal and
politicized hiring at the Department of Justice. We exposed the partisan excesses and
illegalities of the Gonzales regime that so degraded the Justice Department.

We fought for access to the secret legal opinions of the Bush-Cheney-Gonzales Justice
Department by which they bent the law to excuse illegality, from warrantless wiretapping
z Page 2/6 August 5, 2010

to torture. It was in connection with a Senate Judiciary Committee hearing that the
infamous 2002 torture memo was withdrawn. Journalists like Jane Mayer and Charlie
Savage, and alienated former insiders like Jack Goldsmith and James Comey, helped give
the American people an outline of what had taken place in the secret governing processes
of the Bush administration.

This year is different. I was at the White House two weeks ago when President Obama
signed into law the Lilly Ledbetter Fair Pay Act. That bill corrects the overreaching by
activist members of the United States Supreme Court who misinterpreted the law and
granted license to companies to discriminate against women employees, so long as those
employers concealed their illegal actions for a mere six months. The checks and balances
in our system of government finally worked last month to correct that harmful error. But
it took two years during which a filibuster led by Senate Republicans prevented corrective
action. Instead of the presidential veto promised by former President Bush, our new
Senate was able to do the right thing, and our new President proudly signed this
restoration of civil rights as the first legislative bill of his presidency.

Already this year we have considered and confirmed the historic nomination of Eric H.
Holder Jr. to be the Attorney General of the United States. I hope that the manner in
which it concluded, with a strong bipartisan vote to confirm him, is a good sign.
Attorney General Holder certainly is a welcome change. He is committed to restoring the
rule of law and, as President Obama said in his inaugural address, “to reject as false the
choice between our safety and our ideals.” Attorney General Holder understands the
moral and legal obligations to protect the fundamental rights of all Americans, and to
respect the human rights of all. The Nation was reassured when, in answer to my first
question to him at his confirmation hearing, he declared that “waterboarding is torture”
and that no one is above the law.

The confirmation of Eric Holder is a marker of how far we have come as a Nation. We
have come from a time many years ago when a United States Attorney General believed
that the Constitution did not allow African Americans to be considered citizens, to the
day when an African American now serves as our Attorney General. It was, after all, a
former Attorney General who authored the Supreme Court’s Dred Scott decision denying
the humanity of slaves, former slaves and free men. That is not what the United States
Constitution said. That is not consistent with the promise of America. We have come
from a time, within the lifetimes of some of us in this room, when Washington hotels
denied service on the basis of race. And we have also come from a time, just five decades
z Page 3/6 August 5, 2010

ago, when the Senate Judiciary Committee was the place where civil rights bills were sent
to die, to a day where it is the place where we work to fulfill the promise of equal
opportunity in our Nation’s founding documents.

The Attorney General, however, is only the first of 28 leadership positions that need to be
confirmed by the Senate to help revitalize and restore the Justice Department.

We also have more than 60 vacancies in our Federal courts. We are lucky to have Judge
Katzmann serving, and I hope that he takes advantage of his lifetime tenure to serve
many more years. But for the existing vacancies and those that will arise in the Judicial
Branch, the Judiciary Committee has a vital role. Sometimes our work is widely known by
the public; more often it is not. But it is always bears directly on the quality and
temperament and public trust in a justice system that has long been the envy of the
world. I believe this President’s appreciation for the courts will motivate him to nominate
people of the highest caliber and qualifications. I have long supported a comprehensive
judgeship bill, which is already 12 years overdue. We need to restore judicial pay and to
honor the role that Federal judges play in our independent judiciary.

The Judiciary Committee has a full docket with matters ranging from review of expiring
provisions of the PATRIOT Act, and reforming our patent laws in order to help revitalize
our economic engine, to passing personal data protection legislation and strengthening
our anti-corruption and anti-fraud laws. I hope that this year we can also strengthen
penalties for violent crimes motivated by prejudice and hate. The President has already
moved to increase transparency in government, but we can make even greater
improvements to the Freedom of Information Act, and we may finally be able enact a
media shield law. These are all issues that you will be hearing about in the days, weeks
and months ahead.

The President is right that we need to focus on fixing the problems that exist and
improving the future for hardworking Americans. I wholeheartedly agree and expect the
Judiciary Committee and the Senate to act accordingly. But that does not mean that we
should abandon seeking ways to provide accountability for what has been a dangerous
and disastrous diversion from American law and values. Many Americans feel we need to
get to the bottom of what went wrong. We need to be able to read the page before we turn
it.

We will work with the Obama administration to fix those parts of our government that
went off course. The Office of Legal Counsel at the Justice Department is one of those
z Page 4/6 August 5, 2010

institutions that was hijacked and must be restored. There must be review and revision of
that office’s legal work of the last eight years, when so much of that work was kept secret.

We have succeeded over the last two years in revitalizing our Committee’s oversight
capabilities. The periodic oversight hearings with the Attorney General, the FBI Director,
the Secretary of Homeland Security, and others will continue. The past can be prologue
unless we set things right.

As to the best course of action for bringing a reckoning for the actions of the past eight
years, there has been heated disagreement. 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.

There are others who say that, even if it takes all of the next eight years, divides this
country, and distracts from the necessary priority of fixing the economy, we must
prosecute Bush administration officials to lay down a marker. Of course, the courts are
already considering congressional subpoenas that have been issued and claims of
privilege and legal immunities – and they will be for some time.

There is another option that we might also consider, a middle ground. A middle ground
to find the truth. We need to get to the bottom of what happened -- and why -- so we
make sure it never happens again.

One path to that goal would be a reconciliation process and truth commission. We could
develop and authorize a person or group of people universally recognized as fair minded,
and without axes to grind. Their straightforward mission would be to find the truth.
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. Congress has already
granted immunity, over my objection, to those who facilitated warrantless wiretaps and
those who conducted cruel interrogations. It would be far better to use that authority to
learn the truth.
z Page 5/6 August 5, 2010

During the past several years, this country has been divided as deeply as it has been at
any time in our history since the Civil War. It has made our government less productive
and our society less civil. President Obama is right that we cannot afford extreme
partisanship and debilitating divisions. In this week when we begin commemorating the
Lincoln bicentennial, there is need, again, “to bind up the nation’s wounds.” President
Lincoln urged that course in his second inaugural address some seven score and four
years ago.

Rather than vengeance, we need a fair-minded pursuit of what actually happened.

Sometimes the best way to move forward is getting to the truth, finding out what
happened, so we can make sure it does not happen again. When I came to the Senate, the
Church Committee was working to expose the excesses of an earlier era. Its work helped
ensure that in years to come, we did not repeat the mistakes of the past. We need to think
about whether we have arrived at such a time, again. We need to come to a shared
understanding of the failures of the recent past.

It is something to be considered. It is something Professor Bernstein, for whom this

lecture series is named, might have found worth studying. We need to see whether there
is interest in Congress and the new administration. We would need to work through
concerns about classified information and claims of executive privilege. Most of all, we
need to see whether the American people are ready to take this path.

Edmund Burke said that law and arbitrary power are eternal enemies. Arbitrary power is
a powerful, corrosive force in a democracy. 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. Now we face the worst economic
crisis since the Great Depression while still contending with national security threats
around the world. This extraordinary time cries out for the American people to come
together, as we did after 9/11, and as we have done before when we faced difficult
challenges.

That is no more improbable than the truth that came to light and laid the foundation for
reconciliation in South Africa, or in Greensboro, North Carolina; no more improbable
than the founding of this Nation; and certainly no more improbable than the journey the
people of this Nation took over the last year with a young man whose mother was from
Kansas and whose father was from an African village half a world away.
z Page 6/6 August 5, 2010

Raw Story has the Q & A, in which Leahy encourages the Georgetown students to email or
write to him. CSPAN has the complete video here.