After Leahy’s Hearing on a Commission of Inquiry
By Frederick A.O. Schwarz, Jr., Chief Counsel of the Brennan Center for Justice
I had the opportunity to testify last week before the Senate Judiciary Committee’s hearing on Senator Leahy's proposal for an independent commission to examine U.S. counterterrorism policies. Engaging in some kind of investigation into these policies is a priority for a clear majority of the public, according to a recent poll -- just as it is to many writers and readers here at the Daily Kos, as demonstrated by the journalism and debates on the issue here over the past few weeks. Based on my experience as chief counsel to the Church Committee, I believe that a fair, impartial investigation by an independent commission could yield enormous benefits -- not just in terms of restoring the rule of law, but in terms of making our policies better and our country safer.
Of course, not everyone is convinced that this is the right approach. There is plenty of room for good faith disagreement over how to proceed. However, it is crucial that we conduct this debate accurately and openly, and some recent arguments against the commission are based on misconceptions and false premises. Even Senator Leahy, who was exceedingly gracious to all the witnesses throughout last week’s hearing, noted -- in response to an objector -- that it felt like there were more "straw men" in the room than at any farm in Vermont. Other witnesses in favor of a commission of inquiry included Thomas Pickering, a former senior state department official, Lee Gunn, a retired vice admiral, and John Farmer, a prominent attorney who served on the 9/11 commission.
So while my public testimony states the affirmative case for a fair, impartial commission, I would like to tackle some of the misconceptions that are now circulating in the media and public debates. And since this is an interactive civic forum, readers can add more suggestions in the comments, and I will try to respond to some of them:
Misconception 1: A commission of inquiry examining post-9/11 policies would "criminalize policy differences."
Truth: One of the main reasons we need a commission is to actually determine whether these were merely "policy differences," or whether they went beyond that and undermined the rule of law. The unprecedented, unconstitutional claim that the President can unilaterally override the First and Fourth Amendments in secret, for example, is not a difference of "policy." The Bush administration itself acknowledged that by rescinding its legal opinion in its last days. Other issues that clearly go beyond "policy differences" is whether President Bush's warrantless wiretapping violated the Foreign Intelligence Surveillance Act and which of the interrogation techniques employed by the CIA constituted torture under U.S. law.
Misconception 2: Establishing an independent commission of inquiry is a "partisan" move.
Truth: The rule of law is not a partisan issue. It is a founding principle of our democracy that has guided Democrats and Republicans throughout our country's history. That's why the independent commission should not limit itself to examining the actions of President Bush's administration. In a recent interview with the New York Times, Senator Leahy told Scott Shane that the "temptation to abuse powers in a crisis is bipartisan, and the commission's review should include the role of Democrats in Congress in approving the Bush policies."
I would add that the commission should look at whether any of these policies pre-dated the Bush administration or have continued into the Obama administration.
Misconception 3: The proposed commission is "unprecedented" and would set in motion a cycle of political recrimination.
Truth: On many occasions in our nation's history, serious allegations of unlawful executive actions were met with investigations by special congressional committees or independent commissions. Nonetheless, most enjoyed broad bipartisan support, and no "cycle" of investigations occurred.
Misconception 4: A commission is just a substitute for (or a precursor to) criminal prosecutions.
Truth: No matter what the Justice Department does or does not do regarding prosecutions, we need a commission. We don’t need one to find out whether individual actors violated the law in specific cases. Rather, we need a commission to assemble a full picture of the government's counter-terrorism policies and to examine which policies were proper and which were improper. And more specifically, a commission would examine why those improper policies veered off course and consider how to bring them back in line with the rule of law and how to prevent similar abuses in the future. These objectives simply would not be addressed by criminal prosecutions.
Furthermore, it is primarily opponents of the commission who now mistakenly argue that a commission is tantamount to prosecution, as this Washington Independent article explains, not the actual experts and policymakers backing the commission proposal.
It was a pleasure to be back in the Senate, focusing on similar issues that I dealt with more than 30 years ago on the Church Committee, which investigated intelligence agencies' excesses. It was especially good to be back with Senator Leahy, who seems very determined to make this commission of inquiry happen.