Democrats have a long history of constructing their own petards on which to be later hoisted, due to their inability to consider the consequences of their actions beyond immediate partisan advantage. For a classic example of this process at work, look no further than the current proposal for a banana republic-style "Truth Commission" to conduct show trials of the outgoing Administration for the offenses of (1) acting aggressively to protect national security and then (2) losing an election.
The partisan nature of the enterprise is obvious: proponents are calling for a commission whose mandate is expressly limited to investigating Republicans, and control over which will presumably remain with the Democratic majority in Congress. (Not that a commission witch-hunting national security professionals in Democratic Administrations would be a good thing either, unless your goal is to drive good people from the field and make the ones who remain too timid to take action when the nation's security is at risk).
Thomas Jefferson, the first Democratic president and the first president to take office after a change in partisan control, did not bring up John Adams on charges for having passed the Alien and Sedition Acts; Jefferson simply removed the offending policy and cleared those who had been wrongly convicted. Our history, and our tradition of peaceful transfers of power, might have been very different if Jefferson had handed Adams over to Napoleon on the grounds that Adams had abused civil liberties in the Quasi War with France.
David Rivkin, in his testimony today, points out that building such commissions as partisan weapons can in the long run have the same wholly forseeable yet unforseen blowback for Democrats as their creation of the Independent Counsel statute did, and then some:
[O]ne of the commission's most dangerous effects would be to increase the likelihood of former senior U.S. government officials being prosecuted overseas, whether in the courts of foreign countries or before international tribunals. The nature of the offenses supposedly at issue vastly increases the possibility of the commission's work having the effect of priming politicized foreign prosecutions. However erroneously, senior Bush Administration officials have been the subject of accusations that implicate not only U.S. criminal statutes but also international law, and which are arguably subject to claims of "universal jurisdiction" by foreign states. Foreign prosecutors could seize upon a supposedly "advisory" determination that criminal conduct occurred - especially if it is the only "authoritative" statement on the subject by an official U.S. body - as a ready pretext for their bringing charges against individual former U.S. officials. They might argue that the mere fact that the commission was established shows that grave crimes must have occurred and interpret the United States' non-prosecution of the individuals concerned as a mere technicality to be repaired by their own broad assertions of jurisdiction. Indeed, all of these circumstances appear to be tailor-made to support the invocation of universal jurisdiction by foreign judicial bodies and its utilization of this jurisdiction as the basis to launch prosecutions of Bush Administration officials. Doubtless, many commission advocates - who also have been among the most vociferous Bush Administration critics throughout the war on terror - hope for exactly this result.
They should think twice. Attempting to prosecute your political opponents at home, or facilitating their prosecution abroad, is like pouring acid on the machinery of democracy. The late and unlamented Independent Counsel Statute repeatedly showed that once this Pandora's Box is opened, its contents can wreak havoc equally across the political and party spectrum. Indeed, if al Qaeda is no more than a criminal conspiracy - as some have claimed for many years - then President Obama's charge sheet has already been started. By authorizing continued Predator missile attacks against al Qaeda's leadership in Afghanistan and Pakistan, he has directly targeted those "civilians" with deadly force. That is a war crime.
President Obama and the Democrat-controlled Congress are entitled to revise and reject any or all of the Bush Administration's policies. No one, however, is entitled to hound their political opponents with criminal prosecution - whether directly or through the device of a politically unaccountable commission. Those who support such efforts now may someday regret the precedent it sets. Claims that the Bush Administration abused presidential powers have been thoroughly reviewed by several congressional committees. The Justice Department is fully capable of considering whether any criminal charges are appropriate.
Let me close by pointing out a great, and perhaps unintended irony. Much of the anger about the Bush Administration's war on terror policies, has been focused on its treatment of captured alien enemy combatants and especially its rendition policy. In an effort to "investigate" these matters, the proponents of the commission appear to be giving short shrift to the civil liberties of Americans, outsourcing law enforcement functions to private entities and even to be practicing a soft form of rendition, in that they are virtually inviting foreign courts to go after American citizens.
Democrats who don't want to see members of Barack Obama's Administration dragged through a similar process - as they surely will be - should heed Rivkin's words. Will they listen now? Or will they wait for their own to be in the dock before they discover that they have created a constitutional crisis that threatens the process of peaceful transitions of power that have been one of America's most treasured legacies since 1801?