March 12, 2009
Today's topic: What are the pros and cons of having a commission investigate an administration that may have broken the law? What kind of precedent would such an inquiry into actions taken by the Bush White House set for future administrations and their intelligence agencies?
As I said yesterday, I don't see that there is any need for a truth commission to investigate the Bush administration's counter-terrorism policies. At a time when Congress is committing the country to trillion-dollar deficits for years to come, why worry about wasting money on an unnecessary commission?
Here's the first reason to fear this commission would end up proving quite mischievous: Look at who is most keen to set up such a commission.
You can look at the responses to this exchange from Times readers. Or you can just look around. Just yesterday, for example, I received notice of a talk at Georgetown Law School -- one of this country's most prestigious law schools -- on why former Defense Secretary Donald H. Rumsfeld should be prosecuted for war crimes.
This truth commission seems to appeal, for the most part, to people who wish we could have prosecutions but realize we won't. It would be very hard to persuade an American jury to convict Rumsfeld for doing what he thought proper to defend the United States. But stirring up a lot of smoke and noise with a commission report, that's much easier.
And I think that's the main motive here: to vindicate the most hysterical critics of the administration who are absolutely convinced that someone, somewhere must have committed a crime, because Bush was evil or a fool or anyway under the thumb of Halliburton and Dick Cheney.
Consider, in the next place, who would serve on this commission. Sen. Patrick J. Leahy (D-Vt.) has called for a "bipartisan commission." Who's going to decide which Republicans get to serve? The Obama White House? House and Senate leaders? And which Republicans would want to serve? What sort of career incentives would a serious person have to sit on a commission to rake over allegations of abuse against an administration now entirely powerless to punish or reward Republicans serving on this commission?
Finally, consider how such a commission would probably distort our public debate, even if it operates with more fairness and impartiality than we have any right to expect. Advocates want to investigate "abuses." What counts as an "abuse"? You and Leahy worry about torture of terrorism suspects and rendition of suspects to countries where they may have been subject to torture. OK, but what about releasing suspects from Guantanamo Bay when we shouldn't have? Dozens of released detainees have been found among terror operatives in Afghanistan and Iraq. Last year, one such former detainee drove a truck filled with explosives into an Iraqi army base, killing 13 soldiers and wounding more than 40 others.
Are we going to review how Bush administration officials allowed that to happen? Is the truth commission going to review the role of critics -- both at home and abroad -- who pressured the administration to release dangerous terrorists when they should have been kept safely locked away?
The most we can hope is that this truth commission only inhibits and intimidates U.S. security officials a little bit more. The idea that this commission will point the way to just the right balance in our policy is beyond any hope, given who wants this commission, who will likely serve on it and who will interpret its findings for a distracted American media.
Jeremy A. Rabkin is a law professor at George Mason University.
Jeremy, I have to assume that you are starting from the premise that there is no evidence that any government policies during the Bush administration violated the law. Otherwise, I don't know how you could escape the conclusion that we need a comprehensive inquiry to learn the full facts about these policies and, if the facts show that any policies were unlawful or contravened America's most fundamental shared values, to examine the systemic failures involved and the consequences for our safety. You have not disputed my point that criminal prosecutions would not serve that function, and it seems patently irresponsible, as a matter of democratic governance, not to undertake the inquiry at all.
Congress could in theory perform that function. But despite what you've said so far, you can't really believe that Congress has already has performed it and that we've learned all there is to know. Although Congress has conducted many hearings, it was unable to get the vast majority of the crucial information it sought from the administration; when information was passed along to select members of Congress, they were forbidden from disclosing it. If you are somehow privy to the full details of the CIA's "enhanced" interrogation program, the government's warrantless surveillance program and whether or how the government acted on the recently released White House Office of Legal Counsel memo authorizing an executive override of the 1st and 4th amendments in domestic counter-terrorism operations, then perhaps you should be the first witness before the commission.
If I'm correct that you oppose a commission because you think that no departures from the rule of law occurred, you should say so. We can then have a direct discussion about what evidence exists on this matter and how much evidence is necessary to trigger the need for an inquiry. For now, though, I will address the points you raise in your post.
Your point about who supports a commission (according to you, the same people who want to see high-level officials prosecuted for war crimes) is relevant only if you assume that no crimes occurred -- a point that is far from settled. But in any event, you are mistaken about who supports a commission and who opposes it. Those who advocate criminal prosecution (or, as you call them, the "hysterical critics") have thus far tended to oppose a commission, believing -- mistakenly, in my view -- that a commission would foreclose prosecutions. Those who support a commission, on the other hand, tend to include those closer to the political center, including prominent public servants such as former FBI Director (under presidents Reagan and George H.W. Bush) William Sessions, retired Vice Adm. Lee Gunn and John Farmer, senior counsel to the 9/11 Commission. As for me, I have never viewed the commission as a proxy for prosecution. To the contrary, I have said that the commission should examine what went right as well as what went wrong.
As for who would serve on such a commission, the process for appointing members could be similar to that employed for the 9/11 Commission, which resulted in a roster of distinguished members who were widely heralded for their impartial approach. You note that individuals would have no "career incentive" to serve, because the administration to be examined is now "powerless to punish or reward Republicans serving on this commission." That is exactly the idea. The commission should be made up of individuals whose incentive is the public good rather than career advancement or political reward, and who have a known history of placing the rule of law over political considerations.
The most interesting point you raise, in my view, is whether a commission should examine the administration's release of Guantanamo detainees who later committed acts of terrorism. I see a significant difference between policies that violate the law -- such as "enhanced" interrogation techniques that amount to torture -- and policies that don't work or lead to bad results. As a general rule, I think setting up commissions to examine unwise policy choices is a bad idea. In this case, however, the stakes are unusually high, and it would be difficult to conduct a comprehensive review without addressing matters such as the one you raised. For example, if the commission were to determine that the government has unlawfully detained some individuals at Guantanamo, it would be unable to recommend an institutional solution without looking at the consequences of the various alternatives (including release). So, yes, I think the commission might well cover that issue.
But perhaps I'm just being "hysterical."
Frederick A.O. Schwarz Jr. is chief counsel at the Brennan Center for Justice at the New York University School of Law.
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