By Frederick A.O. Schwarz, Jr., Chief Counsel of the Brennan Center for Justice
I appreciate the thoughtful responses to my post on the need for a commission of inquiry. Most responses addressed whether a commission would be an adequate substitute for criminal prosecution of those government officials who may have committed crimes. In response, here are my thoughts:
An independent commission is not intended as a substitute for prosecution. Criminal prosecutions address only one question: did a particular individual violate a particular law in a particular instance? When government officials break the law in violation of government policy, that question is sufficient. But when government officials break the law as part of government policy, there are a host of additional questions that must be asked if we want to preserve the rule of law going forward. For example:
a. What was the process by which these policies come into being?
b. What institutional failures allowed this to happen?
c. What can be done to fix those failures so that it doesn’t happen again?
Criminal prosecutors have no jurisdiction to answer these questions. They address the symptoms – not the disease.
Criminal prosecutions are insufficient for another reason. Some of those who responded to my post expressed their belief that it was unrealistic to expect a searching inquiry by a commission (a point I will address later in this post). If realism is the issue, then these same people surely must acknowledge how unlikely it is that a concerted campaign of criminal prosecutions will take place. As a threshold matter, the Justice Department, for obvious reasons, would not undertake any such prosecution unless it was certain to succeed. Given that the OLC opinions – as outrageous as they are – provide a potential legal defense (and one mandated by Congress in the torture context), that certainty simply isn’t there. At most, prosecutions would occur in a handful of the most egregious cases, which would provide only glimpses into the policies we want to know about – not a full picture.
At least one person who responded to my post was concerned that an independent commission would frustrate any effort at prosecution by granting immunity. But the commission’s power to grant immunity would be no greater than that possessed by any criminal prosecutor addressing these issues. It is common practice for prosecutors to grant immunity to the "small fish" in order to learn what the "big fish" did. This does not lead to grants of "blanket immunity" in the criminal context; there’s no reason to think it will here.
If anything, the commission will have less need than a prosecutor would to grant immunity to witnesses. I can attest that witnesses are more likely to "confess" misconduct to a commission than to a court. When I was chief counsel to the Church Committee, we had the authority to grant immunity, but never had to use it – despite the fact that witnesses were voluntarily disclosing a wide range of unlawful practices. While I don’t pretend to understand fully the psychology at play, others have hypothesized that people who feel justified in their actions feel compelled to present their side of the story. If that’s true, it makes sense that they would feel more comfortable doing so in the commission context than the criminal prosecution context.
A few posts suggested that an independent commission would serve as a "whitewash" or cover-up. This concern makes some sense, I think, in situations where a President sets up a presidential commission (i.e., a commission whose members are appointed by the President) to investigate his or her own administration. The history of such presidential commissions is indeed mixed. But that concern is much less relevant to independent commissions established by Congress or select congressional committees. When well-designed, these have had great success, not only in exposing unlawful conduct and/or "mistakes," but in leading to meaningful reform.
(On this point, I don’t agree with the poster who claimed that FISA was not a meaningful reform; it successfully governed the conduct of surveillance for a quarter-century. Yes, the Bush administration violated provisions of the Act, but no law – and, it must be said, no criminal prosecution – provides an ironclad guarantee against illegal conduct.)
That an independent commission holds genuine promise is evident from the people and groups that support the idea. One commenter suggested that all of the witnesses at Senator Leahy’s hearing except myself were supporters of the prior administration’s "war on terror." I won’t get into a back-and-forth about the hearing witnesses, but surely the commenter would not describe Amnesty International, the Center for Victims of Torture, the Center for Human Rights and Global Justice, Human Rights First, Human Rights Watch, or Physicians for Human Rights as apologists for the counter-terrorism policies of the Bush administration. These are just some of the human rights groups that support a proposal for a commission. As these groups recognize, a commission represents our best hope, not just for getting to the truth, but for leading to meaningful safeguards against future abuses.
I look forward to continuing this conversation.