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Time Is Running Out

When Sen. Pat Leahy (D-Vt.) yesterday proposed to an audience at Georgetown University the creation of a “truth and reconciliation commission” to investigate Bush administration lawbreaking, he specifically did not call for an investigation that could lead to prosecutions, which is the normal response when individuals are suspected of having broken the law. That may be because of one under-reported fact: time for prosecutions is fast running out.

As Chris Anders, Senior Legislative Counsel at the American Civil Liberties Union pointed out to me the other day, the statute of limitations on prosecuting federal criminal cases is only five years. Some of the most brutal activity that we know about, such as the beatings and waterboarding of detainees by the CIA, started back in 2002, which means the statute on some of those crimes has already run out.

Although the statute of limitations for torture is eight years, anyone accused is sure to argue that their conduct wasn’t technically “torture” and try to use as a shield the infamous John Yoo “torture memos” from the Office of Legal Counsel – defining torture as inflicting only the most extreme pain such as accompanies death or organ failure.

“So lots of conduct for people involved in torture and assault, unless death resulted, the statute of limitations probably has lapsed on most of those claims,” says Anders. (If death results, there is no statute of limitations. According to Human Rights First, at least 100 detainees died in U.S. custody between August 2002 and February 2006.)

Even the abuses at Abu Ghraib might have taken place too early to prosecute now. The mistreatment of detainees and the gruesome photographs depicting it surfaced in mid-April of 2004. “At least some abuse tactics were being used after Abu Ghraib, we believe,” said Anders. It might not be too late to prosecute some of the abuses.

But Attorney General Eric Holder would have to act quickly to appoint a special prosecutor, as advocates such as the ACLU and the Center for Constitutional Rights have proposed.

Rep. John Conyers (D-Mich.), meanwhile, has proposed the most expansive bill on the subject. H.R. 104, which has ten co-sponsors, would create a National Commission on Presidential War Powers and Civil Liberties. The commission would be charged with investigating “the broad range of policies of the Administration of President George W. Bush that were undertaken under claims of unreviewable war powers” including indefinite detention, “enhanced interrogation techniques”, “extraordinary rendition”, domestic warrantless wiretapping, and more.

In his subsequent report, “Reining In the Imperial Presidency,” Conyers recommends extending the relevant statues of limitations, as AfterDowningStreet.org, which is trying to win support for the idea, points out today.

Conyers’ bill hasn’t gotten a whole lot of attention, probably because the mainstream media as a whole has been skeptical that a majority in Congress would ever vote to pass such a bill, or that President Obama would support it. (He evaded the question again at his news conference last night.) But with Leahy’s proposal yesterday for an investigatory commission, and statements from Sen. Sheldon Whitehouse (D-R.I.) and others, the momentum is building.

The clock is ticking, though; time to act is running out.

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