Balkinization: Berns on prerogative and truth commissions

Comments:

"But, surely, no one should oppose a truth commission simply because a number of Democrats may end up being tarnished (along with far more Bushies)."

Surely I don't.

# posted by

Shag from Brookline : 5:14 PM

Sandy,

None of the Dem proposals for a "truth commission" target a single fellow Dem. Thus, Dems are hardly going to oppose a "truth commission" for targeting Dems.

Hell, the House Dems just voted down an investigation of their Speaker's claim without evidence that her CIA briefers lied to her, a crime under the US Code.

This is a purely partisan witch hunt.

# posted by

Bart DePalma : 5:38 PM

Congress may conduct an investigation for purposes of obtaining information needed for future legislation, or it may by law establish an investigating commission for the same purposes. These, however, are different creatures from a “truth commission,” which appears to be some sort of quasi-criminal entity that would exist to assign blame, if not punishment. Consistent with that theme, Mr. Berns (I can hear Shag’s Simpsons references now) would give the “defendants” the right to present evidence and confront witnesses. Such procedures might make the “truth commission” more fair, but they would also highlight its unconstitutional nature.

There is, however, one type of quasi-criminal process that the Constitution does recognize. It is designed for situations in which government officers have abused their powers in violation of the law, which is more or less what has been alleged to have occurred with regard to the enhanced interrogations. It is called impeachment.

# posted by

mls : 5:44 PM

mls* demonstrates his prescience with this -

"(I can hear Shag’s Simpsons references now)"

as he provides us with a Homer-ic "D'oh!" in describing a truth commission as unconstitutional. Of course, his stern commentary lacks a cite.

*Not to be confused with Multiple Listing Service for realtors out there

# posted by

Shag from Brookline : 7:52 PM

Strangely enough, I actually read Berns's article last Saturday (on the plane back from Miami; the guy next to me had a WSJ copy). And I also noted several things worht commenting on:

That forum could be a committee of Congress or a "truth commission" -- so long as, in addition to the assistance of counsel, they would be judged by "an impartial jury," have the right to call witnesses in their favor, to call for the release of evidence including the CIA memos showing the success of enhanced interrogations, and the right to "confront the witnesses" against them as the Constitution's Fifth and Sixth Amendments provide.

Ummmmm ... you mean the kinds of protections we're denying the people actually being tortured?!?!? How's that work?

Cheers,

# posted by

Arne Langsetmo : 8:04 PM

More Berns:

The law cannot "foresee" events, for example, nor can it act with dispatch or with the appropriate subtlety required when dealing with foreign powers....

"Subtlety" being suitably defined as "shock and awe"....

.... Nor, as we know very well indeed, can a legislative body preserve secrecy.

I would say that it appears that it is the executive (a/k/a the Dubya maladministration) that has been responsible for more leaks these last eight years than Congress....

If we're talking "expediency", "realism", and "pragmatism" (as opposed to the aproach of the stultified, law-bound Congress) here, the last eight years are hardly an argument for giving the executive more latitude or leeway.

Cheers,

# posted by

Arne Langsetmo : 8:13 PM

The other piece of garbage in Berns's piece that jumped out at me:

Did the Framers find a place in our Constitution for this extraordinary power? What, if anything, did they say on the subject or, perhaps more tellingly, what did they not say?

They said nothing about a prerogative or -- apart from the habeas corpus provision -- anything suggesting a need for it.

The Suspension Clause has nothing to do with "prerogative".

1). It's provided for in the Constitution

2). It's done by passing a law.

3). Berns is wrong in insinuating that such suspension inures to the executive (by "prerogative"). It's a power of Congress.

Cheers,

# posted by

Arne Langsetmo : 8:19 PM

Shag- just for laughs, I will pretend that you are actually interested in understanding my point. It is well established that congressional committees and legislative commissions may issue subpoenas, hold hearings and engage in factfinding, but they are not permitted to expose for the sake of exposure. See Watkins v. United States, 354 U.S. 178 (1957) ("There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress ... nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself, it must be related to, and in furtherance of, a legitimate task of the Congress.")

Clearly Congress can establish a special committee or a commission (like the 9/11 Commission) to investigate and report on what occurred with respect to interrogations. But those who favor a “truth commission” want something more than that—they want the commission to find guilt and to punish the guilty through public censure. No doubt one could conceal this purpose sufficiently to allow the commission to survive judicial scrutiny, but the purpose itself remains unconstitutional. My point was that if one adopted the procedural protections proposed by Berns, it becomes manifest that the investigating commission is really exercising judicial functions, which it is not permitted to do.

# posted by

mls : 9:55 PM

I happen to be a big fan of Watkins, but I think it's pretty easy to drive an aircraft carrier through its language. Congress can simply say that it wants to consider legislation relevant to OLC and the CIA and needs a thorough airing of the facts for that purpose.

# posted by

Mark Field : 10:48 PM

Mark- you are correct that Watkins leaves a lot of leeway for Congress to conduct investigations and that if the investigating commission is structured in a conventional way, it would be difficult to attack simply on the basis that its true purpose was to expose guilty individuals. Whether that makes such a commission actually constitutional, or whether it just means that Congress can “get away with it,” is, I suppose, a debatable issue. But if the commission were structured in such a way as to make its true purpose apparent (eg, by establishing criminal procedure rights such as Berns suggested), a court would be much more likely to strike it down as unconstitutional.

I suspect that a commission modeled on South Africa’s truth commission (which I take it is the inspiration for the proposal here) might raise some serious constitutional questions, but I don’t know enough about it to be sure.

# posted by

mls : 11:43 PM

MLS:

But if the commission were structured in such a way as to make its true purpose apparent (eg, by establishing criminal procedure rights such as Berns suggested), a court would be much more likely to strike it down as unconstitutional....

Yeah ... but that would mean accepting Berns's "straw man", wouldn't it? But that is by no means obligatory, much less Constitutionally required. As I pointed out. the folks that are most in need of due process are those that are actually being punished. When Berns starts agitating for such, maybe we can think about how much "protection" we ought to afford those that ordered the torture ... and when.

Cheers,

# posted by

Arne Langsetmo : 12:35 AM

Challenge mls* for a cite to support his claim that a truth commission would be unconstitutional and he quickly pops up with Watkins v. United States (a Warren Court decision). But then the ever alert Mark (thanks, Mark) points out that an aircraft carrier could drive through Watkins' language. mls* seems to accept this reluctantly but as that aircraft carrier steams towards the Gitmo coaling station with a truth commission aboard, mls* is at its stern, in the tradition of Jack Nicholson in "A Few Good Men," screaming at the commission: "You can't handle the truth," but with this tad of a hedge from his original assurance of unconstitutionality::

"I suspect that a commission modeled on South Africa’s truth commission (which I take it is the inspiration for the proposal here) might raise some serious constitutional questions, but I don’t know enough about it to be sure."

Yes, mls*, to be sure.

*Not to be confused with a Multiple Listing Service for Realtors.

# posted by

Shag from Brookline : 4:42 AM

Shag- attempting to reason with someone of your level of immaturity is, of course, my mistake, but I will make it one last time. If you read my prior post, you will see that I clearly stated: " No doubt one could conceal this purpose sufficiently to allow the commission to survive judicial scrutiny, but the purpose itself remains unconstitutional."

Now, please, continue with your childish rants. But really, multiple listing service? Even Nelson would be embarrassed.

# posted by

mls : 6:39 AM

mls* sternly retaliates with:

" . . . but the purpose itself remains unconstitutional."

Who has so defined the purpose, besides mls*? And allow me to restate (again) mls*'s closing paragraph in his penultimate (my favorite word) comment at 11:43 PM:

"I suspect that a commission modeled on South Africa’s truth commission (which I take it is the inspiration for the proposal here) might raise some serious constitutional questions, but I don’t know enough about it to be sure."

This is "clearly stated" by mls* in a manner of speaking and I am taking it to the bank in Springfield to add to Nelson's college fund so he can follow in mls*'s footsteps.

*[Deleted due to oversensitivity that might result in Blog-rage.]

# posted by

Shag from Brookline : 6:59 AM

Arne- if the “truth commission” is not designed to punish anyone, then the procedural protections suggested by Berns are unnecessary. But if the result of the commission were simply to report the facts of what happened, I suspect that proponents of a commission approach would be bitterly disappointed. Indeed, given that much of what happened has already been established, one wonders why it would be necessary to spend millions of taxpayer dollars to have a commission, when the congressional intelligence committees are perfectly capable of conducting an investigation to fill in the gaps. As I understand it, SSCI is already doing so.

Your larger point, I take it, is that the likes of John Yoo don’t deserve due process, given that they are merely being exposed, not really punished. You should commune with Joe McCarthy, who I am sure can appreciate your frustration.

# posted by

mls : 8:17 AM

Watkins pops up in comments.

The truth commission proposal is about "public" matters; the concern for privacy in that case raised various examples such as questioning of one's "his beliefs, expressions or associations."

OTOH, the ruling specifically notes that "The public is, of course, entitled to be informed concerning the workings of its government." The case was underlined as not being about Congress able "to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government."

So, why exactly is the case raised here? Oh ... the people who support it actually what more than that. Apparently:

"But those who favor a “truth commission” [why the quotes?] want something more than that—they want the commission to find guilt and to punish the guilty through public censure"

True enough that many think that when we learn "what occurred," it will be something worthy of "public censure." So, if Congress finds the truth about corruption in some industry during public hearings considering legislation, the industry might be "censured" somehow.

Also, given the time, effort and yes pressure on those investigated, it is best only to investigate when you think something might be there. Some wrongdoing. This is a problem?

It is said that intelligence agencies can already investigate. But, unless the details are kept secret -- even from other members of Congress apparently since they have big mouths -- there will be some public exposure. Censure!

Anyway, two problems arise. One, in the current regime, anything in Congress is liable to be deemed political. A truth commission is alleged to be a more non-partisan way to go about things. OTOH, to assume bad intent as some here do, maybe that's a feature not a bug. Stuff was buried when investigated in Congress in the past.

Second, even if Congress does it, the problem touches on much more than intelligence. For instance, questions of constitutional rights and military oversight.

This cross-committee subject matter makes one truth commission a possibly useful device. It also can deal with a big and time consuming issue on its own, while Congress has a short attention span and many things on its plate.

Anyway, Watkins is not a good fit here except by those who think this is not about the "informing function" but more akin to Joseph McCarthy. Ironically, many of those so concerned about TCs are of the sort who liked the guy!

# posted by

Joe : 8:52 AM

BTW, concern for the rights of those brought in front of a Truth Commission is the issue at hand.

This is a bit ironic since many supporters of the TC, to the annoyance of some, want it to be used in place of criminal liability. For instance, they would one assume get immunity, which would mean waiver of the right not to testify.

If they want full criminal rights, why not just put them on trial? Anyway, the Truth Commission is meant to be impartial -- that's the point -- and surely that would include an ability to tell their side of the story and put forth witnesses in that respect.

The idea of some hatchet job is really a fantasy in any realistic universe, even if some would want a hanging jury. Mr. Berns brings up Pelosi. Sure .. the 9/11 Commission questioned Bush. I assume Pelosi won't need a buddy to testify with her, but hey, if she wants ... Hmm. Did Bush testify under oath then?

BTW, as to Berns rambling about the President, the Federalist Papers assured us the President was a limited function. Governors were commanders of militia ... what is that but a sort of state army? After all, governors now have professional police forces and swat teams.

As to Graham being some sort of modern day Taney ... did Berns hear his recent comments? Much less "the law, even if the sky might fall" there.

# posted by

Joe : 9:07 AM

I recall the Army/McCarthy hearings vividly, including the picture of Roy Cohn cupping a hand around his mouth while providing Sen. Joe McCarthy with an earful of legal advice (or whatever) and can easily substitute John Yoo for Roy and Bush/Cheney for McCarthy. Bad memories trigger nightmares.

By the Bybee, what political party were the dynamic duo of Roy and Joe from? Coincidence?

Let's thank Joe for providing more details on Watkins to put it aside.

As for due process for Yoo, perhaps he is due the same process he opined on for OLC.

# posted by

Shag from Brookline : 9:23 AM

I missed the part of Berns's op-ed that's well worth reading. All I see is sophistry.

Berns doesn't state what he thinks the limits of presidential prerogative are. He suggests so much but makes so few definite statements.

Berns's analysis also sidesteps obvious problems. E.g. let us suppose in our system the President has the power to order torture of prisoners. Then Senate ratification of Geneva was empty. We promise not to do these things which our top guy can do any time. Should someone have mentioned that at the time? Isn't that an obvious problem? Yet Berns never even mentions it.

Then there's Berns's parting sneer to Pelosi. Perhaps this is on-message from the leader of his party, an entertainer with weight, substance abuse, and fact problems. Perhaps this rouses the Repub faithful (both of you, there). The rest of us have grasped the concept that complicity doesn't mean there was no crime. No, of course Berns isn't serious in calling for a truth commission; it was just an opening for him to slam a Senator he doesn't like.

He'd be more honest in slamming his real enemies: Geneva, the civilized world, and the facts. I take it he has enough sense to realize that admitting those are his real enemies wouldn't carry the day for his sophistry. How does that saying go, if the facts and the law are against you?

In sum: I am underwhelmed by the force of Bern's argument. But I have sympathy for his position: the defense of the indefensible is always fraught with difficulty.

# posted by

jpk : 11:51 AM

To keep the conversation on point, it's probably worth pointing out that Berns said this:

That forum could be a committee of Congress or a "truth commission"....

IOW, he didn't say that Congress should constitute a "Truth Commission". That said, any Congressional committee (which no one here seriously argues is unconstitutional, given their clear interest in shaping legislation covering the subject matter) should afford the same privileges as any such committee in terms of lawyers, right to remains silent, etc. It's really pretty much presumptuous to complain now about lack of "due process" when such committee isn't even contemplated, much less formed, and there's every expectation that if such occurs, they will do so in the usual (and unobjectionable) fashion.

Cheers,

# posted by

Arne Langsetmo : 1:18 PM

MLS:

Your larger point, I take it, is that the likes of John Yoo don’t deserve due process, given that they are merely being exposed, not really punished. You should commune with Joe McCarthy....

... who trashed tons of people for what is not a crime, and many unfairly (see his "list"). Just because McCarthy made a bollix of it doesn't mean that such intestigations are per se abusive.

But my "larger point" is not that Yoo "do[es]n't deserve due process", but rather that his "process" due is no greater or lesser than anyone else who is called by Congress to testify.

I'd note that G. Gordon Liddy never suffered much from even his conviction of felonies, being a darling of the RW now, and Oliver North was even a Republican Senatorial candidate. But then again, the Republican party has an interesting idea of who is a "hero". Could even be a career jump-started for Yoo.

Cheers,

# posted by

Arne Langsetmo : 1:26 PM

MLS:

Your larger point, I take it, is that the likes of John Yoo don’t deserve due process, given that they are merely being exposed, not really punished. You should commune with Joe McCarthy....

... who trashed tons of people for what is not a crime, and many of them unfairly (see his "list"). Just because McCarthy made a bollix of it doesn't mean that such intestigations are per se abusive.

But my "larger point" is not that Yoo "do[es]n't deserve due process", but rather that his "process" due is no greater or lesser than anyone else who is called by Congress to testify.

I'd note that G. Gordon Liddy never suffered much from even his conviction of felonies, being a darling of the RW now, and Oliver North was even a Republican Senatorial candidate. But then again, the Republican party has an interesting idea of who is a "hero". Could even be a career jump-starter for Yoo.

Cheers,

# posted by

Arne Langsetmo : 1:39 PM

This brings to mind Joe the Plumber:

"But then again, the Republican party has an interesting idea of who is a 'hero'".

Then again, Joe the Plumber eventually quit, flushing the Republican party presumably because the "pipes were caaallling" with a cleaner career opportunity.

# posted by

Shag from Brookline : 1:52 PM

Bart DePalma said:

None of the Dem proposals for a "truth commission" target a single fellow Dem. Thus, Dems are hardly going to oppose a "truth commission" for targeting Dems.

Hell, the House Dems just voted down an investigation of their Speaker's claim without evidence that her CIA briefers lied to her, a crime under the US Code.

This is a purely partisan witch hunt.

You must have been a hell of a prosecutor.

“Forget the drug kingpins! We’ve got to go after the users and low-level dealers!”

Marcy Wheeler has documented numerous errors in the CIA’s released briefing lists. See:

emptywheel.firedoglake.com/2009/
05/19/the-cias-comedy-of-briefing-
list-errors/

To even imply that things said by the CIA should be taken as likely to be truthful and non-self-serving requires a total lack of knowledge of the history of the CIA.

Your determination to totally ignore the possible war crimes committed by the Bush administration to focus on what was at worse standing by while others committed crimes shows where the real partisan witch hunt is.

# posted by

Hank Gillette : 3:59 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 6:09 PM

Hank:

1) Although the analogy to Pelosi's slander accusing CIA without evidence of crimes is strained, a prosecutor does not start at the top of an organized crime gang, but rather prosecutes and flips lower level operatives of the orgaization to work his or her way up.

2) Marcy simply credits Dem politicians over the CIA briefers, not a wise proposition. The only proven error on that list concerns the date of Electric Chair Bob's briefings. Given that Pelosi appeared utterly befuddled when reporters got her off her lawyered script and then fled the country to avoid further press confrontations, her version of events is hardly credible.

# posted by

Bart DePalma : 6:52 PM

The only proven error on that list concerns the date of Electric Chair Bob's briefings.

Wrong again, Bart.

# posted by

mattski : 9:15 PM

And how did "Electric Chair Bob's" record compare with Gov. George W. Bush's record in his Texas years? What nickname might our resident LLB* assign the latter?

And Mattski scores again in exposing LLB*'s Backpack of Lies.

*Little Lisa's bro

# posted by

Shag from Brookline : 9:41 PM

Well, sure. Nobody with nothing to hide should be afraid of a truth commission, should they?

(Doncha just LOVE it when you can turn a rightard meme around?)

# posted by

Woody (Tokin Librul/Rogue Scholar/ Helluvafella!) : 12:41 PM

Arne:

Since when is Liddy serving four and a half years in prison for his role in the Watergate burglary "never suffered much"?

# posted by

Charles : 1:37 PM

In observing:

no one should oppose a truth commission simply because a number of Democrats may end up being tarnishedWe might say the tarnish isn't getting caught. So there's no "end up" about it.

Goring didn't get tarnished when he was charged at Nuremberg; he got tarnished when he issued orders for the Holocaust.

Likewise, we may say that Americans who committed and enabled war crimes over the last eight years have already been tarnished.

# posted by

jpk : 2:20 PM

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# posted by

Unknown : 1:54 AM