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Truth Commissions and Prosecutions

By Jack M. Balkin

With respect to the calls for truth commissions and prosecutions of former Bush administration officials, I have what I would describe as concerns rather than outright objections. I don?t have either in terms of the calls for more transparency, for disclosure of all secret legal opinions for example. My concerns are directed toward what will happen if we try to put former officials through the wringer by calling them to account, whether immunized in front of a truth commission or in a criminal prosecution. My most general concern is that such a process assumes a political and normative consensus about torture, rendition, etc. which is certainly worth creating but really does not exist at present.

I assume we are talking about torture and other illegal acts that occurred in the aftermath of 9/11. If so, is a truth commission going to examine Democratic officials, including members of Congress, who specifically endorsed torture and harsh tactics after the attacks? Or, for that matter, Democrats who supported the Military Commissions Act? The sad fact is that there was a sort of minor moral collapse among the American political elite after the attacks. Jane Mayer?s book recounts how Senator Clinton (our new Secretary of State) called John Walker Lindh a ?traitor? without any evidence, for example. Cheney was not alone in calling for a turn to the ?dark side.? A truth commission aimed solely at the acts of Republicans would be rightly seen as hypocritical.

My other concerns relate to parallels I see between proposed commissions and the congressional investigations of the intelligence agencies in the mid-1970s and the Iran-contra scandal. The intelligence investigations were partly derailed by a counteroffensive launched from within the agencies. Today?s NYT makes clear that intelligence officials are already in derail mode, no doubt supported by some members of Congress. But the deeper point is that in the 70s the derailing worked because investigating Democrats couldn?t offer any alternative approach to how the agencies should conduct their quasi-legal business. You may have noticed our new president is already impressed with his intelligence briefings. That doesn?t bode well for truth commissions that will be accused of interfering with intelligence operations (not that anyone will be able to verify this).

The Iran-contra concern is the possibility of lots of Oliver North moments. You may remember North as the Marine Lt. Col. who ran the Iran-contra operation out of the NSC. In front of Congress North wasn?t too persuasive on the law, but he wore his uniform, invoked patriotic values and claimed presidential backing for acts that made the U.S. safer in a dangerous world. That?s also Cheney?s ideology and it has more political support than many Democrats would care to admit. But if you think as I do that North was wrong and his version of patriotism a travesty, that case should be made directly in a policy debate rather than in the quasi-judicial precincts of a truth commission.

Full post as published by Balkinization on January 12, 2009 (boomark / email).