an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Mark Tushnet writes that prosecution for war crimes isn't the only alternative:
Ah, Jack, you're not thinking outside the box. There's a difference between "figuring out whether there's a case to be made" and instituting a prosecution. I've been pushing the idea of an internal Church Committee like report on what happened, leaving it to the public to decide whether it approves of what Bush et al. did. My fantasy is that there would be a section simply describing the principles of liability laid out in the Nuremberg lawyers' judgment -- and let people draw their own conclusions about Yoo.
A series of congressional investigations into the interrogation and detention policies of the previous Administration, or a special Presidential "truth commission" like the 9/11 Commission would have certain advantages. They would require only that the next Administration cooperate with Congress-- for example, by declassifying certain OLC opinions and other documents that should never have been classified, and by giving permission for certain executive branch officials to testify before Congress.
That does not mean that there would be no obstacles to such Congressional investigations or to a "truth commission." An Obama or Clinton Administration might not want to reveal everything that Congressional investigators or members of a truth commission wanted, partly to preserve executive branch prerogatives, partly because some classified materials still affect national security, and partly because some classified materials would embarrass not only the Bush Administration but also the present Obama/Clinton Administration and the previous Administration of Bill Clinton.
It's also possible that members of the Bush Administration would refuse to testify, arguing that they cannot do so without permission of former President Bush. If the commission or the congressional committee then held them in contempt, this would put the next Justice Department to the unpleasant choice of deciding whether to prosecute these former government officials, not for war crimes but for contempt.
Finally, there is the possibility that these hearings would so exacerbate partisanship that nothing would get done in Congress despite the fact that the Administration chose not to bring any criminal prosecutions at all.
Despite all of these obstacles, Congressional investigations and/or a truth commission into interrogation and detention practices is a far more likely response to the criminal behavior of members of the present Administration than a prosecution for war crimes within the United States. Posted
by JB [link]
My fondest dreams... A "Truth Commission" uncovers the bulk of the evidence, then the Hague picks up the ball and runs w/ it.
Do any of you recognize how Orwellian "truth commission" sounds? The term smacks of the "bushiness" we have also suffered through the past seven years -- like "no child left behind"; "patriot act"; and "homeland security." YIKES!
How will such a commission or future Dem congressional investigations differ from the present Dem congressional investigations?
Believe it or not, I actually agree with Bart (if he is saying what I think he is saying).
Democrats in Congress have all the tools they need to investigate claims of executive branch war crimes. They can subpoena witnesses, hold hearings, etc. If people refuse to testify, they can sue to enforce the subpoenas. If the courts overrule the privilege claims, the witnesses will have to come in and testify. If the privilege claims are upheld, why wouldn't they be upheld in a truth commission context as well?
If the intention is to get to the bottom of what happened (as opposed to bringing a prosecution), we already have a mechanism for doing it. It is blocked by some Democrats who fear the political consequences of using it.
I think the “possibility that these hearings would so exacerbate partisanship that nothing would get done in Congress” is the reason why neither of the two scenarios discussed (prosecutions or hearings) will happen if a democrat wins the White House. Really, I see this as being almost a non-starter (especially coupled with concerns for protecting the Executive) unless you want the headlines during your administration to be dominated by this (I have trouble seeing how this is in the interest of their administrations). Were McCain to win the White House, maybe (MAYBE) something like the hearings contemplated could come about, but, if initiated by a democratic Congress, it would bring with it the dreaded (IMO) hyper-partisanship (a la Clinton’s impeachment). That, or, given McCain’s unique background, perhaps he (and only he) could initiate it without it turning into a partisan circus.
Really, I think more time will have to pass before it can be soberly examined.
With that in mind, tell me again why the chances of these same people approving another Church Committee style evisceration of the intelligence community are anywhere above zero.
This is a strawman that doesn't touch the idea of whether it would be good (or necessary) to have a full accounting of these activities in the "War On Terror."
You can tell the Yoo memo has really turned the tables on the torture discussion as the arguments turn not on a lack of evidence but in looking forward and just forgetting about the past, or at least trying to undercut the possibility of accounting for any abuses and crimes by attempting to predict the future with bad-faith and facetious criticism.
An essential element of any effective truth commission (say, of the South Africa model) is that the participants voluntarily testify, freely and fully, in the expectation that amnesty is implicit in the bargain.
If the object is to finally "get the truth" of a government's broad actions, in order to change the lawless culture of that government, that bargain has to be upheld.
If recent years are any indication, the composition of the commission holding such hearings would be designed to guarantee amnesty for less than truthful participation and to minimize the blowback on sitting politicians....
Beyond that, I can't imagine Douglas Feith, for example, describing his actions in any other terms except brilliant strategy in the face of overwhelming odds.
The principal players in this sordid mess that is the Bush administration don't have the gene for conscience, and therefore, are simply unable to testify freely and fully, or to show even a smidgen of remorse for their actions. It's just not in them.
For that reason alone, amnesty in exchange for full testimony would only encourage their party brethren successors.
Since no American prosecutor would undertake, say, a prosecution of Dick Cheney on matters impinging on national security, the international community will have to do it, if it is to be done at all.
The simple truth is that if we are unable to dismantle the national security state which has been created over the last sixty years, and which has promoted an all-powerful executive, we cannot also expect that the old rules of the republic still apply. The two are incompatible and in conflict.
"Finally, there is the possibility that these hearings would so exacerbate partisanship that nothing would get done in Congress despite the fact that the Administration chose not to bring any criminal prosecutions at all."
A commission, along the lines of the 9/11 commission, would have the advantage over the Dem Congress that it would appear less overtly partisan. Such a commission might make a stronger impact. N.b. that, FBOW, the 9/11 Report's version of the facts is going to be the Received Version for many years to come.
(It could be 50/50 Dem/Repub, with a few of the old-fashioned, anti-torture Republicans on it. Plus Jonah Goldberg, for entertainment value.)
Just a note: My thought was about an *internal* report, not for congressional hearings or a "Truth Commission" of any sort. Lots of the questions people have raised apply only to hearings and the like, not to an internal investigation and report.