Today’s topic: Sen. Patrick J. Leahy says his proposed commission of inquiry examining allegations of torture would serve more to heal the reputation of the U.S. and help the government learn from its mistakes than to lay the groundwork for prosecuting members of the Bush administration. Does that mean the commission shouldn’t try to uncover criminal actions by officials? And if the panel does find evidence of serious crimes, what should it do with such evidence?
A commission could do more than a prosecutor
Point: Frederick A.O. Schwarz Jr.
The idea of an independent commission of inquiry to examine recent counter-terrorism policies is gaining momentum and support. But there is still some confusion about how such a commission would relate to criminal prosecutions of government officials who may have violated the law. Some skeptics argue that a commission would be an inadequate or impermissible substitute for criminal prosecution. In fact, a commission would not be a substitute for criminal prosecution at all -- it would address an entirely different set of needs and questions.
The first role of a commission is to learn the full truth about the relevant policies and practices. Serious questions have been raised about the lawfulness of these policies, not to mention their adherence to our nation’s fundamental shared values. These questions necessitate a thorough understanding of what the policies actually were, how they were implemented and their consequences. A criminal prosecutor would have neither the ability nor the mandate to conduct that kind of inquiry. Even if several criminal prosecutions were to occur, they would at most present snapshots of the government’s conduct, not the full picture we so badly need.
The commission’s second role would come into play if it uncovered the existence of unlawful government policies. When government actors break the law in disregard of official policy, our fundamental concern is individual accountability, the prosecutor’s concern. When government actors break the law as part of official policy, we should be equally (if not more) concerned. We should be asking not just what happened, but how did it happen. What was the process by which unlawful conduct became policy? What institutional failures allowed this to occur? And what safeguards can we put in place to ensure that the problem doesn’t happen again? These are not the questions a prosecutor asks, but without answers to them, we can at most address the symptoms, not the disease. (Later in the week, I will explain why a commission, rather than Congress, would be better positioned to ask these questions.)
To be sure, in the course of answering these questions, the role of individual officials in designing or implementing unlawful policies may come to light. A commission should not determine whether particular individuals should be prosecuted for their conduct; that is the Department of Justice’s job. But a commission shouldn’t shy away from the critical system review that must happen here simply because it may touch on the conduct of individuals. The Justice Department is fully capable of making its own decision regarding whether the commission’s findings merit opening a criminal investigation -- a decision that turns on a host of considerations beyond whether the policies themselves were consistent with the law.
Also, there is little reason to fear -- as some do -- that the commission’s likely authority to grant immunity would disable criminal prosecutions. Criminal prosecutors, however, would have this authority too. The commission would be entrusted to use immunity sparingly and judiciously, just as a prosecutor would be. If anything, a commission would be less likely to have to use that power. When I served as chief counsel to the Church Committee in 1975, witnesses frequently testified about unlawful activities, but none asked for immunity. Scholars have theorized about the psychology of this phenomenon. I don’t pretend to understand the psychology, but I’ve observed it first-hand.
Lastly, Jeremy, you have argued elsewhere that other countries on occasion have held truth commissions because criminal prosecutions were not an option. As you pointed out, we don’t have that need. But we do have a clear need to learn the full facts of our government’s counter-terrorism policies and examine the system failures that took place.
That’s why it’s so important to have a commission of inquiry.
Frederick A.O. Schwarz Jr. is chief counsel at the Brennan Center for Justice at the New York University School of Law. Elizabeth Goitein, the director of the Brennan Center’s Liberty and National Security Project, contributed to this post.
No need for a fancy new commission
Counterpoint: Jeremy A. Rabkin
I think you are getting way ahead of yourself, Frederick. You start by claiming that your idea for an “independent commission of inquiry ... is gaining momentum and support.” Then you address quite secondary, technical questions about how the commission’s lawyers will coordinate their activities with prosecutors in the Justice Department.
I want to stop at the first sentence of your opening statement and get you to explain what it is you’re really talking about here.
I don’t see that there is any “momentum” for his idea. The Obama administration has not endorsed it. No Republicans in Congress have endorsed it. True, Sen. Patrick J. Leahy (D-Vt.) held a hearing on the idea last week -- at which we both testified. But other than Leahy, no other members of the Senate committee could be bothered to stay through the whole hearing. Even the Code Pink demonstrators who came to the hearing left before it was over.
I think there is not much support for this idea because there is, at this point, no obvious need for it. Some policies of the Bush administration provoked controversy. We’ve had numerous congressional hearings on such controversies, particularly since the Democrats gained control of Congress in 2006. We’ve had specialized inquiries by high-level commissions to look at the abuses at Abu Ghraib prison and allegations of abuse at Guantanamo Bay. We now have a new administration. It has pledged to reconsider past policies and has started doing so by releasing a whole series of controversial legal memorandums from the Bush Justice Department, many of which had already been rescinded in the last weeks of the Bush administration.
What is it, exactly, that we now need to have clarified by a fancy new commission? That in the aftermath of the 9/11 attacks, the Bush administration may have taken some positions that are now viewed as questionable? You should try to explain what sorts of things managed to evade detection in past investigations but would now be brought to light by an “independent commission.” And you should explain why such new revelations -- such as they might be -- would really be of any great interest today.
I see that our enemies want to make America look bad whenever they can. I see that some partisans were eager to make the Bush administration look as bad as possible. But our enemies won’t be mollified by your commission. Most of the anti-Bush partisans at home have been satisfied by the results of the last election.
At this point, you and the Brennan Center seem to be in the same position as a lot of retailers these days: selling leftover merchandise that’s no longer in demand.
Jeremy A. Rabkin is a law professor at George Mason University.