Balkinization: Perhaps A Truth Commission

Perhaps A Truth Commission

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 9:59 AM by JB [link]

Comments:

My fondest dreams... A "Truth Commission" uncovers the bulk of the evidence, then the Hague picks up the ball and runs w/ it.

# posted by

bamage : 10:23 AM

Bush, Cheney, Rumsfeld, Rice, Yoo, and their hench will end up like OJ Simpson: unconvicted, free, but shunned and despised by everyone whose friendship has not been purchased.

I hope someday to be formally introduced to one of them so that I can can refuse to shake their hand; spitting would be appropriate, but I wouldn't lower myself to spit on one of these.

# posted by

joel hanes : 10:31 AM

Who would play the Jack Nicholson "A Few Good Men" role to shout at us:

"YOU CAN'T HANDLE THE TRUTH!"

Can we expect certain trolls to audition for the part?

# posted by

Shag from Brookline : 10:46 AM

"[T]his 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."

They should prosecute them under the RICO act.

# posted by

-bwg : 10:56 AM

How will such a commission or future Dem congressional investigations differ from the present Dem congressional investigations?

# posted by

Bart DePalma : 11:12 AM

Prof. Balkin:

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.

Is there any precedent you know of for such (asserted) "executive privilege" lasting 'beyond the grave'?

Is there any statutory law concerning executive records, etc. that would support such a claim?

(All this assuming the preznit at the time had no objection to the disclosure)

Cheers,

# posted by

Arne Langsetmo : 11:28 AM

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!

# posted by

gwendeleon : 1:53 PM

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.

# posted by

Dilan : 2:27 PM

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.

# posted by

Scotto : 2:33 PM

Scotto:

[G]iven McCain’s unique background, perhaps he (and only he) could initiate it without it turning into a partisan circus.

Karl Rove is advising McCain....

If you're thinking this might happen, I got a bridge to sell you.

Cheers,

# posted by

Arne Langsetmo : 3:11 PM

Did anyone notice any member of the Gang of Eight or later the entire intelligence committees of either party give something less than full or tacit support for these alleged "war crimes?"

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.

# posted by

Bart DePalma : 4:04 PM

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.

# posted by

Eric : 4:45 PM

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.

# posted by

Montag : 5:28 PM

"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."

So, you're saying there's no downside?

# posted by

Brett : 6:00 PM

"I hope someday to be formally introduced to one of them so that I can can refuse to shake their hand; spitting would be appropriate, but I wouldn't lower myself to spit on one of these."

My fantasy is that they will make the mistake of taking a cruise off the coast of Somalia where they will captured, tried, and executed by Somali pirates as hostes humanis generis.

# posted by

Bill : 6:16 PM

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.)

# posted by

Anderson : 8:48 PM

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.

# posted by

Mark Tushnet : 1:14 AM