Senate Judiciary Committee chair Patrick Leahy, D-Vermont, deserves credit for pressing ahead with his modest proposal to establish a truth and reconciliation commission to review the assaults on the Constitution and general lawlessness of the Bush-Cheney administration.

As Leahy said at the opening of Wednesday’s Judiciary Committee hearing on “Getting To The Truth Through A Nonpartisan Commission Of Inquiry”:

Nothing has done more to damage America’s place in the world than the revelation that this Nation stretched the law and the bounds of executive power to authorize torture and cruel treatment. The Bush administration chose this course, but tried to keep its policies and actions secret, knowing that they could not withstand scrutiny in the light of day. How many times did President Bush go before the world and say that we did not torture and that we acted in accordance with law?

There are some who resist any effort to look back at all, while others are fixated on prosecution, even if it takes all of the next eight years, or more, and further divides this country.

Over the last month, I have suggested a middle ground to get to the truth of what went on during the last several years, in a way that invites cooperation. I believe that that might best be accomplished though a nonpartisan commission of inquiry. I would like to see this done in a manner removed from partisan politics. Such a commission of inquiry would shed light on what mistakes were made so that we can learn from these errors and not repeat them.

That is a reasoned and responsible stance, of the sort we have come to expect from Leahy.

There is no question that the chairman is pushing further into the constitutional thicket than President Obama or Attorney General Eric Holder seem to be willing to go. And there is certainly some merit in borrowing from the wise experiments in accountability initiated by other countries — especially South Africa, which used the truth-and-reconciliation-commission model to get those responsible for Apartheid-era crimes to acknowledge where the bodies were buried in return for the promise of immunity.

Unfortunately, Leahy’s proposal to remove from the table the prospect of prosecution of officials who have committed crimes goes against the fundamental American precept that the rule of law must apply to all of us — even presidents, vice presidents, attorneys general and White House aides.

Justice Anthony Kennedy was correct when he observed in the Supreme Court decision restoring the writ of habeas corpus that was undermined by the Bush administration and its congressional amen corner, that the Constitution is not something an administration is able “to switch… on and off at will.”

Even Leahy admits that: “We must not be afraid to look at what we have done, to hold ourselves accountable as we do other nations who make mistakes. We must understand that national security means protecting our country by advancing our laws and values, not discarding them.”

Unfortunately, the chairman’s proposal for a commission switches off the rule of law by suggesting that the prospect of legal prosecution even in cases of extreme lawlessness — and congressional action to address gross assaults on the Constitution — in favor of “developing a process to reach a mutual understanding of what went wrong and learn from it.”

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