n March 2001, U.S. Archivist John W. Carlin received a letter from Alberto Gonzales, then counsel to the newly inaugurated president George W. Bush. It concerned an important deadline that was looming—one that Bush owed to Richard Nixon.
In 1974, Congress ordered a lockdown on all records kept by the Nixon White House, afraid that the outgoing president would try to wipe out the paper trail of his disastrous second term and chastened by the recent destruction of decades’ worth of FBI files by the late director J. Edgar Hoover’s loyal secretary. That order was expanded four years later into a law requiring that all presidents’ papers—everything from briefings to personal notes and everyday communications between the president, vice president, and their staffers—be handed over to the National Archives twelve years after their terms ended for eventual public release. Ronald Reagan was the first chief executive to whom the Presidential Records Act applied, and his papers were due to be turned over to Carlin at the beginning of Bush’s term.
Gonzales wanted Carlin to delay the release until June. His letter didn’t say why, but Carlin agreed. Then in June, Carlin got another memo from Gonzales—Bush’s attorney now wanted until the end of August. Carlin agreed again. The extensions continued until November, when Bush issued an executive order: effective immediately, the release of presidential records would require the approval of both the sitting president and the president whose records were in question, rather than just the former. It was what open-government advocates would later describe as a two-key system: under Bush’s rule, Nixon could have buried the Watergate tapes without explaining himself to anyone.
Bush’s executive order had little to do with any concerns of Reagan himself, whose estate has since shared his papers enthusiastically. Some administration critics theorized at the time that Bush was trying to shield from scrutiny his father’s vice presidential records, which were among the Reagan White House documents—but ultimately it wasn’t really about George H. W. Bush, either. It was about the new president and vice president, and the kind of government they intended to run. Bill Clinton’s White House had been relatively obliging in matters of secrecy, handing over millions of pages of documents—down to the White House Christmas card list—when Congress demanded them. Things would be different under Bush. "I think they thought Clinton was too open, had caved in to Congress too much," Carlin says. "It was a different philosophy."
Gonzales’s March 2001 memo was the opening salvo in a war over information, one that began in the earliest days of the Bush administration and will continue beyond its end. The stakes, which no one could have predicted when the letter crossed Carlin’s desk, are now self-evidently enormous: when Bush hands over the keys to the White House in January, he will leave behind more unanswered questions of sweeping national importance than any modern president. We still do not know how intelligence operatives, acting in the name of the United States, have interrogated suspected terrorists, and how they are interrogating them now (see sidebar: TORTURE). We do not know how many Americans’ phone calls and e-mails were scanned by the National Security Agency (see sidebar: WIRETAPPING). We do not know—although we can guess—who ordered the firings of the U.S. attorneys who didn’t comply with the Bush administration’s political agenda, and we do not know who may have been wrongly prosecuted by those who did (see sidebar: POLITICIZATION OF JUSTICE). There are large gaps in our understanding of the backstories to everything from pre-war intelligence in Iraq to the censoring of scientific opinion at the Environmental Protection Agency and the Department of the Interior. And those are the things we know we don’t know—there are also what Donald Rumsfeld might call the unknown unknowns.
The thought of revisiting this history after living through it for eight years is exhausting, and both President Barack Obama and Congress will have every political reason to just move on. But we can’t—it’s too important. Fortunately, an accounting of the Bush years is a less daunting prospect than it seems from the outset. If the new president and leaders on Capitol Hill act shrewdly, they can pull it off while successfully navigating the political realities and expectations they now face. A few key actions will take us much of the distance between what we know and what we need to know.
TREAT THE NAVAL OBSERVATORY
LIKE A CRIME SCENE
Three months after Bush issued his presidential records order, a Justice Department attorney named Anne Weismann stood in front of Judge Emmet Sullivan in Washington’s district court. Weismann was defending Dick Cheney’s refusal to hand over the records from the energy task force meetings he had convened the previous year, which had prompted a lawsuit by the conservative legal group Judicial Watch and the Sierra Club. Sullivan was irate. "I get the feeling the government’s underestimating the seriousness of this case," he told Weismann.
Weismann had been a Justice lawyer for twenty years, and had appeared often in Sullivan’s court. But this case was different. "I’ve never seen him that angry—he wouldn’t even let me talk," she recalled recently. The encounter made her rethink what she was doing. Weismann still believes that there were limited legal arguments to make in defense of keeping the energy task force records secret. But what drove Cheney was something bigger. The case would ultimately wind its way to the Supreme Court, after Cheney’s legal team claimed to Sullivan that executive privilege meant the White House didn’t have to hand over anything to the courts if he didn’t feel like it. But by the time the Supreme Court ruled in Cheney’s favor, Weismann was no longer representing the vice president. The day Sullivan read her the riot act in district court, she says, "was the point at which I said, ‘I have to stop doing this.’ "
Weismann told me this story in mid-October, in a McPherson Square office suite belonging to the watchdog group Citizens for Responsibility and Ethics in Washington (CREW), where she is now chief counsel. The floor of her office was half obscured by rows of accordion folders full of papers. Among them were the briefs for a case she is now litigating against her old client, Dick Cheney.
In September, CREW sued Cheney to preempt any attempts he might make to destroy or remove the records of his vice presidency when he left office. The suit was prompted by a bit of fine print Weismann had noticed in Bush’s November 2001 executive order instituting the two-key system. The administration’s lawyers had written that the Presidential Records Act applied only to the vice president’s "executive records." Weismann realized that this subtly narrowed definition could exclude many of Cheney’s most important papers, including his personal files and any records of his work on the National Security Council and as president of the Senate. "There were all these holes," she says.
A growing body of investigative reporting and memoirs by Bush White House insiders-turned-dissenters suggests that most of the administration’s most controversial national security decisions—on wiretapping, the Iraq War, and renditions—originated in the Office of the Vice President, hashed out by Cheney, vice presidential counsel David Addington, and aide I. Lewis "Scooter" Libby. Cheney’s papers are the Amazon rain forest of Bush administration records: they are of immense importance to the big picture, and there is a real risk that they will be lost before we know exactly what’s in there. If there is one overarching priority between now and January 20, it is to surround Cheney’s office with every possible legal barrier to removing so much as a Post-it Note from the premises.
Of course, what’s there will not tell us the entire story. The Bush administration’s obsession with secrecy is often compared to Nixon’s, but the two are qualitatively different. Nixon was compulsively secretive, and was ultimately undone by his contradictory obsession with record keeping. Cheney, by contrast, is systematically secretive, a habit he acquired as Gerald Ford’s chief of staff in the post-Watergate years. "I learned early on that if you don’t want your memos to get you in trouble someday, just don’t write any," the vice president said in a speech last year at Ford’s presidential museum in Grand Rapids, Michigan. (Libby, a meticulous diarist, learned a similar lesson the hard way at the hands of special prosecutor Patrick Fitzgerald.) But even as careful an executive as Cheney would have trouble running an administration completely devoid of written communication. Unless they have been destroyed already, his office’s records are likely at least to include e-mails among lower echelons of staffers reflecting the dictates from the vice president’s inner circle: Cheney’s electronic shadow.
The records of the White House are also uniquely vulnerable. They are in the hands of administration loyalists, and won’t stay in the building when Obama takes office. Preserving these documents as public records, even if we can’t read them for twelve years, is our most pressing concern.
DECLASSIFY, DECLASSIFY, DECLASSIFY
Fortunately, most administration paperwork can be found in department and agency files, and will be available immediately after Bush leaves office. "While the White House can keep many of its internal deliberations secret, it will not be able to conceal anything that was actually implemented in policy," says Steven Aftergood, the director of the Federation of American Scientists’ Project on Government Secrecy. Much of that material is now classified, and pressure should be brought to bear on the Obama administration to make sure that as little as possible of it stays that way.
It’s the nature of all presidential administrations to overclassify, and some of the Bush administration’s gratuitous secrecy falls into this relatively innocent category. But the administration’s higher-ups also used national-security-justified secrecy for political purposes on a regular basis. Relevant offices within the Justice Department were excluded from discussions about wiretapping and torture for expediency’s sake, and White House officials who believed in an unfettered executive could use classification to keep the legislative branch from questioning policy. "This was the first time I have seen what I regarded as deliberate decisions, made at the highest of levels, to exploit the classification system, not for reasons of national security but for bureaucratic infighting—to keep people from weighing in," says J. William Leonard, who ran the National Archives’ Information Security Oversight Office—the office that reviews the federal government’s classification decisions—from 2002 to 2008, after thirty years of classification work in the Defense Department. The decision to bury the previously independent Federal Emergency Management Agency under layers of Department of Homeland Security bureaucracy—a factor in FEMA’s slow response to Hurricane Katrina—was made without public debate. Although huge swaths of information about Guantánamo Bay detainees remain classified, government prosecutors have often backed off their most serious charges in court cases where evidence has had to be made public, suggesting that much of that is secret for political reasons as well.
When Obama takes the reins in January, he will inherit the same bureaucratic apparatus Bush used, and with it the records of how he used it. This is the best opportunity for the new president to shine a light on the past eight years with the stroke of a pen. He should direct the government’s inspectors general to undertake exhaustive, top-to-bottom audits of the classified documents their agencies have produced under Bush, declassifying and releasing everything for which secrecy isn’t of demonstrable national security interest.
One specific trove of documents is a priority: the records of the Department of Justice’s Office of Legal Counsel. The OLC is the executive branch’s legal sounding board—the president asks its staff whether something he or she wants to do is legal, and the OLC sends back an opinion explaining why or why not. OLC lawyers are in an unusual position, halfway between attorneys and judges. They give advice to the president, but that legal interpretation has a heft that gives government officials who follow it a degree of immunity—"what is effectively an advance pardon for actions taken at the edges of vague criminal laws," Jack Goldsmith, the head of the OLC from 2003 to 2004, wrote in his 2007 book The Terror Presidency. "It is one of the most momentous and dangerous powers in the government: the power to dispense get-out-of-jail-free cards."
All presidents encounter legal gray areas at one point or another, and it was inevitable that the Bush administration would find many in its prosecution of the war on terror. But Bush and Cheney used the OLC in a novel and troubling way: instead of helping the executive branch fine-tune its plans to fit the law, the Bush OLC fine-tuned the law to fit its plans. Bush did not invite Congress to authorize its extended wartime powers (and it surely would have if he’d asked), as did Lincoln and FDR. Instead, the administration used the OLC to create a body of secret law. Like-minded OLC lawyers like John Yoo wrote opinions justifying wiretapping, interrogation techniques, and—most importantly—Cheney’s and Addington’s long-held belief that the president could declare law simply by virtue of being the president: the ultimate extension of the "unitary executive" philosophy, and the legal backstop to all of the administration’s power expansions.
Many of the most important of these opinions remain classified. (Senate Judiciary Committee Chairman Patrick Leahy issued a subpoena for some of them in October, but as of this writing it has yet to be honored.) The next president should make them public for several reasons. One is that we have little idea what the legal justifications were for the illegal wiretapping program and what they are now for the interrogation of detainees. If the opinions that have been released—which often hinge on citation-less assertions and dubious interpretations of precedent—are any guide, the secret ones may be flimsy; Goldsmith retracted several during his brief tenure in the office. And because OLC opinions carry over to the next presidency, they will guide Obama’s actions until new opinions tell him otherwise.
There are reasons to hope that Obama will be willing to release these documents. He has openly disagreed with the arguments made in some of the most controversial Bush OLC opinions, stating in an interview last December with the Boston Globe that he "reject[ed] the view, suggested in memoranda by the Department of Justice, that the President may do whatever he deems necessary to protect national security, and that he may torture people in defiance of congressional enactments." On his campaign’s Web site he pledged to create a National Declassification Center aimed at restoring sensibility to executive branch secrecy.
But regardless of what they’ve said on the campaign trail, incoming presidents tend to be deferential toward their predecessors in the matters of records—they know they’ll be in the same boat four or eight years down the road. Releasing and retracting the OLC memos is an even trickier proposition; the list of presidents who, if handed dramatically expanded executive powers, would voluntarily give them up is pretty short. Getting these concessions requires a combative Congress, which in the post-Gingrich era usually means a Congress run by a different party. It was easy for congressional Democrats to shake documents loose from Gerald Ford, a relic of a disgraced Republican administration, in 1975. It’s doubtful they would take on an ascendant Democratic White House in 2009 with anywhere near the same vigor.
This, then, is a critical area in which both the Obama administration and the new Congress can earn our trust. If Obama wants to prove he really is a different kind of president, and if Congress wants to demonstrate in time for the 2010 elections that it can act tough alongside a Democratic executive, this is one way to do it.
FORGET THE SUBPOENAS
Prodding Obama to release documents isn’t Congress’s only responsibility—the heavy lifting in any serious investigative effort necessarily falls to the legislative branch, too. Executive branch investigations are usually worthless—remember the Rockefeller Commission? I didn’t think so—and Obama has shown only lukewarm interest in mounting one. In April, he told the Philadelphia Daily News that while he would have his Justice Department investigate any evident criminal actions by the outgoing administration on the torture and wiretapping issues, "I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we’ve got too many problems we’ve got to solve." Most importantly, oversight is supposed to be Congress’s job. The problem is, that’s easier said than done.
On an afternoon in mid-September, I visited Washington’s E. Barrett Prettyman United States Courthouse, where many of the skirmishes of Bush’s information war have been fought. The air in the fifth-floor courtroom was stuffy, and Department of Justice attorney Carl Nichols poured himself a glass of water. More than sixty people crowded the rows of seats behind him. As we waited for the panel of three circuit court judges to take the bench, it was quiet enough that you could hear the ice clinking in Nichols’s thermos from the back of the room.
At issue was whether Harriet Miers, President Bush’s former White House counsel, could be forced to testify under oath in front of the House Judiciary Committee about the firings of nine U.S. attorneys in 2006. A district court judge had ruled two months earlier that she could, and the administration, predictably, had resisted the idea. "It is truly an inter-branch conflict of the utmost degree," Nichols told the judges. "They are asking the EOP"—the Executive Office of the President—"to do something it has never done before."
Near the front of the courtroom, Judiciary Committee Chairman John Conyers sat in a high-backed leather chair. Before the Democrats took control of the House in 2006, Conyers had held mock hearings in the Capitol basement, and lamented his lack of subpoena power. Now he had it, but it wasn’t doing much good. "There is no American citizen who is exempt from a subpoena!" protested the committee’s attorney, Irvin Nathan, when it was his turn to speak. "It is not supposed to be a game of hares and hounds to get a witness to appear before the Congress."
The hearing was one of those Washington events that seem both important and oddly pointless. As they hashed out the hypotheticals of different decisions, both lawyers and all three judges made it clear they knew what was going to happen: eventually Miers would probably be forced to testify, at which point she would invoke executive privilege, which would trigger another lawsuit. That case would end up in the Supreme Court. And even if the Court were to rule in Conyers’s favor—which would be no small victory—and Miers were forced to testify, she could always pull an Alberto Gonzales. "Witnesses often have amazing lapses in memory," says a former House staffer. "They claim they can’t remember anything—and I’m not sure what can be done to cure that."
This is what the war over information looks like now in Congress: running battles being fought longer and harder, for diminishing returns. (A similar story is playing out in the office of Justice Department Inspector General Glenn Fine, who handed the U.S. attorneys case over to a special prosecutor after he was stonewalled by Miers, Karl Rove, and ex–
Justice Department official Monica Goodling in his own investigation.) Congress has been criticized for not doing a better job of wringing the secrets out of the Bush administration, for shying away from using its heavy artillery—the power of the purse, the ability to withhold confirmation—when the White House refused to hand over documents or offer staff for testimony. This is a little unfair; congressional inquiries have actually produced an impressive documentary record of Bush administration malfeasance that now stretches into the thousands of pages, answering all but a few (albeit important) questions about scandals like the U.S. attorney firings. In a sense, this is paradoxically a case of having so much information that the essential storyline is obscured by the details, a dilemma familiar to any journalist or historian. Questions beget more questions, and if those questions can only be answered by Karl Rove or Dick Cheney, you’re in trouble.
What’s missing now are the key details—who authorized what, and how and why they did it. These would provide a sense of how all the moving parts fit together, the necessary big picture. The congressional committees that are doing the best work on the administration’s wrongdoing—the House and Senate Judiciary Committees, the House Committee on Oversight and Government Reform, and the Senate Armed Services Committee, among others—all have narrow jurisdictions that are not well suited to this kind of wide net-casting. The same is true of agency inspectors general. And the long list of disregarded committee subpoenas suggests that more creative approaches to getting testimony are needed.
The last time Congress considered matters of this sweeping scope was 1975. Rattled by Nixon’s still-fresh abuses of power and recent reports that the CIA had spied on American dissidents during the Vietnam War, the Senate and House created committees to conduct far-ranging investigations into the covert actions of American intelligence agencies. Over the course of its yearlong inquiry, the Church Committee—as the Senate panel came to be called, after its chairman, Senator Frank Church of Idaho—conducted 800 interviews and reviewed 110,000 pages of government records, producing a report that itself sprawled across thousands of pages. Its revelations were damning: the committee confirmed that the CIA had planned the assassinations of leaders in Africa, Latin America, and Asia, had wiretapped Americans and opened their mail, had proposed infiltrating campus antiwar groups, and, Church concluded, had generally behaved like "a rogue elephant rampaging out of control." The committee’s report ultimately led to the creation of the Foreign Intelligence Surveillance Court, which fairly successfully straddled the line between secrecy and accountability in intelligence matters until the Bush administration decided to circumvent it.
Could Patrick Leahy do what Frank Church did? Perhaps. Will he? Not if he has any sense. Once Bush leaves office, the Democratic-controlled Congress will be under as much pressure as Obama to grapple with a massive economic crisis and bring resolution to two wars, to say nothing of tackling looming colossi such as America’s energy and environmental policies, health care system, and entitlement programs. These are not small problems, and the best solutions to them will involve unpopular sacrifices. Given Congress’s permanently low approval rating, its members don’t have the political capital to spare on a major backward-looking investigation, even if they did have the time to do it.
Because the unfortunate fact is that such investigations, while necessary, tend to be politically poisonous for the lawmakers who run them. Frank Church had presidential aspirations in 1975, but the investigation ate up so much of his time that it kept him from campaigning (he later groused that it might have cost him a shot at being Jimmy Carter’s vice president, too). The public and Congress, who had been furious about agency abuses of power in 1975, had mostly lost interest by the time the committee delivered its report a year later. Only one of its recommendations—the surveillance court—actually made it into law, and Church lost his Senate seat in the 1980 election following spurious accusations that his investigation had led to the assassination of a CIA station chief in Greece. The chairman of the concurrent investigative committee in the House, New York Democrat Otis Pike, saw his reputation similarly battered, and left office in 1979. It’s doubtful that Church’s and Pike’s successors would fare much better in 2009. Scandal-fatigued voters probably consider the Bush era something best forgotten at this point, and would prefer that Congress simply turn the page on it, rather than pick through its adventures in agonizing detail.
Also, 2009 will not be 1975. The Democratic-led Church Committee’s findings were widely accepted, but then committee counsel Frederick A. O. Schwarz Jr. points out that this had a lot to do with the target of the investigation: thirty years of intelligence activities, under five presidents and both major parties. "So when we were critical of what had been done," he says, "it didn’t raise partisan concerns." Congress has also changed dramatically since the committee did its work. The partisan allegiances that came to the fore on Capitol Hill in the mid-1990s have hardened, and the public and Congress itself are both conditioned to assume—not inaccurately—that lawmakers’ motives are now dictated more by party membership than by constitutional duty. The findings of an investigation exclusively targeting a Republican administration, conducted under the auspices of a Democratic Congress, would be too easy to dismiss. Moreover, Schwarz notes, the legislative branch is deeply implicated in what the executive branch did during the Bush years, and investigating itself would be something of a conflict of interest.
This doesn’t mean that Congress should abandon the idea entirely. Instead, what Congress needs to do is figure out how to achieve the same goals while avoiding the political consequences. The best way to do this is to appoint someone else to do it, a panel that does for the wartime excesses of the Bush administration what the 9/11 Commission did for the September 11 attacks. In other words, a 9/12 Commission.
WRITE ANOTHER BEST-SELLER
The 9/11 Commission had its problems. It was given an impossible deadline, forced to spend far too much time wrangling for access, and awarded less start-up money than the government spends each year to police the use of food stamps. Co-chairmen Thomas Kean and Lee Hamilton have said that they believed the commission was "set up to fail." Some critics have accused it of prizing consensus over fact-finding. But think for a second about what it accomplished: It gathered what would otherwise have been a diffuse and unintelligible heap of raw documents and interview transcripts into a digestible narrative with policy recommendations. Even Appeals Court Judge Richard A. Posner, in a dissenting New York Times review of the report, dubbed it "an improbable literary triumph," and publisher W. W. Norton has sold nearly 1.5 million copies of the authorized edition to date. The commission’s hearings were widely viewed and considered credible by most viewers in subsequent polls. Its findings had enough bipartisan clout that the report’s biggest recommendation—the reorganization of the intelligence agencies under a single director—was passed into law by the Republican Congress in 2004 even over the objections of some party leaders (the Democratic Congress later passed most of the rest). And the commission’s hearings produced iconic moments: Condoleezza Rice sheepishly acknowledging the title of the August 6, 2001, presidential daily briefing ("Bin Laden Determined to Attack Inside the U.S."), and former chief terrorism adviser Richard Clarke declaring to the 9/11 victims’ families that "your government failed you."
With their strong majorities, the Democrats in Congress can remedy many of the 9/11 Commission’s institutional failures from the get-go, giving the new commission enough time, money, and subpoena power to do its work. Appointing a respected bipartisan membership will be crucial, because of the simple fact that most of the people who know things we need to know are Republicans. Addington and Gonzales will probably never provide useful information about what they did, but their immediate subordinates might, if they are given the right forum in which to do so. Much of what we know now comes from the handful of them who have already come forward. James Comey, a former deputy attorney general, offered up to a Senate committee the story of the attempt by Gonzales and White House Chief of Staff Andrew Card to get Attorney General John Ashcroft to sign an extension of the NSA’s secret wiretapping program while Ashcroft was ill and drugged in a hospital room. Jack Goldsmith, the former OLC head, has published an illuminating memoir of his time in the administration that fills in a great deal of granular detail about how Cheney, Addington, and Gonzales pursued their agenda. Both Comey and Goldsmith are staunch conservatives who agreed with the Bush administration on many principles, but not with the unconstitutional methods by which it pursued them. Comey may have been willing to volunteer his story to a Democratic Senate committee, but a bipartisan commission could be instrumental in reaching more reluctant administration veterans. Some might talk out of a sense of duty, as Comey and Goldsmith appear to have done. Others might be persuaded to testify in order to clear their names and position themselves for future appointments. The crucial thing is to define the question as what happened, not whether it was right. Now is not the time to argue with Jack Goldsmith about what constitutes a legal interrogation technique. Now is the time to get him to help explain what those techniques were.
The commission can sweeten the deal by offering future immunity to anyone willing to testify, making it clear that its goal is to fill in the history of the Bush years, not to send anyone to jail. Otherwise, says Jim Dempsey, the vice president for public policy at the Center for Democracy and Technology and a former House Judiciary Committee counsel, "all the people who know what you want to know come under the protection of the Fifth Amendment. They lawyer up, and the whole inquiry gets frozen." (John Yoo did just that this summer, arriving with high-powered defense attorney Miguel Estrada at a House subcommittee hearing.) And as tempting as it is to believe otherwise, the odds of any major Bush administration figure serving time for what happened over the past eight years are pretty long under even the best of circumstances. Remember Goldsmith’s get-out-of-jail-free card: it would be difficult to convict anyone in a position of authority on charges related to interrogation or wiretapping, because those actions were legitimized with OLC memos. At most, a few CIA interrogators would go to prison, and the big fish would go free, á la Abu Ghraib; and this summer, Congress—the Democratic Congress—absolved the telecommunications companies that helped the NSA listen in on phone calls and e-mail exchanges. The U.S. attorney firings? Maybe a few tangentially related perjury convictions. Invading Iraq on false pretenses? Henry Kissinger did worse, and won the Nobel Peace Prize. And for all of the above, Bush could always borrow a page from his father, who less than a month before leaving the Oval Office preemptively pardoned half a dozen of his fellow Reagan administration officials—
including the defense secretary—for their involvement in the Iran-Contra affair, sinking an independent prosecutor’s six-year investigation.
Most importantly, a commission tasked with creating the be-all, end-all record of a tumultuous political era makes a powerful implicit offer to potential witnesses: the prospect of having some small influence on how they are viewed by history. This is why once-loyal administration officials talk to Bob Woodward and publish memoirs that polish their reputations at the expense of their former bosses’, and why the 9/11 Commission was ultimately able to wrestle testimony—albeit unsworn—out of two presidents and vice presidents on the subject of their own failures. It’s not crazy to think that one or two staffers from the Office of the Vice President, weighing the risk of coming off badly in another witness’s telling against the limited political rewards of loyalty to an administration whose marquee names will be out of power for quite some time, might volunteer their own accounts of the past eight years; they would be instrumental in helping to clear away the unknown unknowns and suggesting which questions to ask. And it’s not totally crazy—though it’s certainly a stretch—to think that our history-obsessed president, who was apparently out of the loop on some of his own administration’s worst debacles, might even toy with the idea for a minute or two.
What the 9/12 Commission needs to do, above all else, is tell a story. In War Is a Force That Gives Us Meaning, veteran war correspondent Chris Hedges writes that following a conflict it is crucial for both sides, aggressor and victim alike, to surrender the narratives they have created in support of their own causes and agree upon a single account of what happened. "Until there is a common vocabulary and a shared historical memory there is no peace in any society," he writes, "only an absence of war." Comparisons of our deeply divided nation to a literally civil-war-torn one aren’t worth belaboring, but it is a fact that pervasive misinformation and secrecy, worsened by an increasingly tribal political culture and the sheer complexity of the issues at hand, have left Americans with fragmented and conflicting understandings of what exactly has been done in our name over the past eight years. Without a collectively agreed-upon story of the Bush administration’s excesses, efforts by Congress to undo them and ensure that they don’t happen again are likely to be misinterpreted by half of the electorate as a Democratic power grab rather than a reinstatement of constitutional protections. That would worsen the partisan trench warfare that got us an irresponsible Congress and hubristic White House in the first place.
Even if the commission turns up nothing new, even if its findings are watered down, it still has value if it can write this kind of official history. Thomas Kean has a funny story from the early days of the 9/11 Commission’s work, about his first classified briefing from the FBI. It took place at an undisclosed Washington address, in a room accessible only to people with the right security clearances, protected by high-tech locks and wired to block listening devices. In the secured room, Kean was given a copy of the bureau’s authoritative record of the events of September 11, a thick document stamped TOP SECRET. An FBI minder looked on as he read it.
Kean, who had only recently been cleared for access to this kind of material, had high expectations. But as he leafed through the file, he grew disappointed. The information the bureau had provided him was nothing new—he had already read most of it in newspapers.
"I know all of this," Kean told the FBI man.
"Yes," the minder replied, "but you didn’t know it was true."
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Charles Homans is an editor of the Washington Monthly.