By Frederick A.O. Schwarz, Jr., Chief Counsel of the Brennan Center for Justice at NYU School of Law
A couple of weeks ago, I posted my thoughts about why we need an independent commission to examine recent counter-terrorism policies. A number of people posted thoughtful comments and questions in response. I didn’t get the chance to address all of these within the 7-day period for posting responses, so I’m writing this post to address some of the comments.
•Chacounne asked two questions: "Do you not see a danger that following a commission the public will be told that the crimes of the Bush administration have been dealt with and the real damage done to real human beings will be ignored?" and "[H]ow will Americans and the rest of the world ever know what happened to those who were renditioned or disappeared if the focus of any commission is on systemic reforms?"
My response: It’s true, a commission won’t accomplish everything that needs to be accomplished here – but neither will criminal prosecution. The point is, these are not mutually exclusive approaches. You can support criminal prosecution to deal with specific cases and a commission to examine the systemic problems (unless you think that the abuses that occurred were just isolated acts by bad apples, in which case criminal prosecution alone would likely be sufficient).
As far as the damage that has been done to real human beings, that should absolutely be one of the commission’s focuses. In fact, I think a commission would be invaluable in that regard. Criminal prosecutors are tasked with proving that a law was violated, not with examining the lasting effects on the victim of the crime. And prosecutions only reveal what happened in a particular instance or instances. Only a commission could paint a comprehensive picture of the damage – human, diplomatic, strategic, etc. – inflicted by the policies in question.
•Nightprowlkitty said: "[R]egardless of all the other honorable people and organizations who are signed on to this, the fact remains that those who did testify [at Senator Leahy’s hearing on the commission proposal], with the exception of you, have very questionable backgrounds. I find that troubling and still do."
My response: With respect – and I do appreciate your thoughtful approach to this issue – I think you’re drawing the wrong conclusion from Senator Leahy’s selection of witnesses. Senator Leahy must convince, not only those who believe that we should focus only on individual crimes and not on the broader systemic failures, but those who believe we should do neither of those things. Those people are far more likely to be convinced by the witnesses he chose. And, as someone who spoke personally with those witnesses, it is simply not the case that they are trying to aid in a "whitewash."
I think the real lesson to be learned from the hearing witness panel is that the abuses that occurred are so egregious that even people who are not the "usual suspects" support an inquiry into what went wrong. And there’s simply no getting around the fact that the "usual suspects" in the human rights world support it too. The commission idea has broad support among the human rights community, including groups like Amnesty International and Human Rights First – groups that would sooner disband than lend support to a "whitewash."
•In response to my point that criminal prosecutions are unlikely in part because OLC opinions provide a potential legal defense, Nightprowlkitty commented that "torture is a crime that has ‘no potential legal defense.’" But there are, in fact, legal defenses to torture, just as there are legal defenses to all crimes in this country. Under current law and practice, reliance on an OLC opinion could in some cases provide a legal defense even if Congress had not codified that defense into law (which it did).
That doesn’t mean the current system can’t be changed. It absolutely should be changed. In my view, that’s one of the most critical matters for the commission to examine. We need to take a close look at OLC’s existing authorities, how they have been implemented, and the best way to revise those authorities to accomplish the twin objectives of allowing government employees to rely on good legal advice while ensuring that bad legal advice doesn’t insulate unlawful conduct. Once again, a commission could do this – a criminal prosecutor could not.
•Valtin asked for "evidence" that the commission would be less likely to engage in a "whitewash" if its mandate did not include recommending criminal prosecution in specific cases. This isn’t an evidentiary point so much as a matter of common sense. If the commission members see their role as teeing up criminal prosecutions, it is far more likely that they will feel pressured to engage in a "whitewash." But if it is made clear that the commission has no role in determining whether prosecutions should occur, and that responsibility is removed from the members’ shoulders, they will almost certainly feel freer to go where the facts lead them.
In addition to the comments I’ve addressed here, one or two people suggested that the Church Committee, a committee that I served as Chief Counsel, accomplished nothing. I will address this point, which I believe to be fundamentally mistaken, in a separate post in the near future. In the meantime, thank you for reading – I appreciate the opportunity to engage in a real discussion on this important topic.