Feeds: 
symbol identifies content for paid subscribers only.
A TORTURE COMMISSION?
Michael Isikoff at Newsweek reports that the Obama people are considering a 9/11 style torture commission, in lieu of any actual prosecutions:
Despite the hopes of many human-rights advocates, the new Obama Justice Department is not likely to launch major new criminal probes of harsh interrogations and other alleged abuses by the Bush administration. But one idea that has currency among some top Obama advisers is setting up a 9/11-style commission that would investigate counterterrorism policies and make public as many details as possible. "At a minimum, the American people have to be able to see and judge what happened," said one senior adviser, who asked not to be identified talking about policy matters. The commission would be empowered to order the U.S. intelligence agencies to open their files for review and question senior officials who approved "waterboarding" and other controversial practices.
Obama aides are wary of taking any steps that would smack of political retribution. That's one reason they are reluctant to see high-profile investigations by the Democratic-controlled Congress or to greenlight a broad Justice inquiry (absent specific new evidence of wrongdoing). "If there was any effort to have war-crimes prosecutions of the Bush administration, you'd instantly destroy whatever hopes you have of bipartisanship," said Robert Litt, a former Justice criminal division chief during the Clinton administration. A new commission, on the other hand, could emulate the bipartisan tone set by Tom Kean and Lee Hamilton in investigating the 9/11 attacks. The 9/11 panel was created by Congress. An alternative model, floated by human-rights lawyer Scott Horton, would be a presidential commission similar to the one appointed by Gerald Ford in 1975 and headed by Nelson Rockefeller that investigated cold-war abuses by the CIA.
It's sort of mindboggling to me that we eschew prosecutions of powerful people for committing crimes because doing so would inflame the pearl-clutching sensibility of the people who enabled those crimes. Others have made this argument before, but what we basically have is a system of justice that is based less on laws than on an evaluation of how the social and political power of a given target might influence the perception of the prosecution. Via Yglesias, Kevin Drum suggests that immunity from prosecution might allow us to know more of what actually happened:
So in the end, perhaps we'll get half of a Truth and Reconciliation commission: we'll get the truth, but not the reconciliation, since I doubt that any of the perpetrators of this stuff are inclined to show the slightest remorse for what they did. I suppose that here in the real world this might be the most we can expect, but I don't have to like it. And I don't.
I should add that it seems unlikely that Obama would set up a commission to investigate behavior that he intends to continue. That said, the Church Commission established the need for government authorities to secure a court order for surveillance purposes in 1978. Thirty years later, that's gone. The frightening thing about this debate over torture is that, given that it's been established as policy and has some popular support, not to mention support from government insiders, it's possible we may be having this debate indefinitely, even if everything comes to light.
-- A. Serwer
COMMENTS (3)
Note that this kind of commission, in the hands of the Obama Administration, might not be a means definitively to avoid any prosecutions, but a means of identifying and publicizing information about egregious abuses that would pave the way politically for the most appropriate prosecutions.
IOW, if you start out with the public intent to prosecute, that effort takes on a very different political cast than one that says, let's put the whole story out for everyone to see -- and then says, "well, now that we see how very egregious and terrible these actions were, it would be a dereliction of our constitutional oath not to prosecute where the evidence is strong and clear."
It's called laying a political foundation. That doesn't mean this is necessarily what the Obama Administration will do, but it would certainly provide an opportunity for it to do so.
That's where left blogistan could help by concerting public pressure forcing the Admin. to prosecute once that kind of evidence comes out, and preventing the commission's launching from including any disavowal of a willingness to prosecute if the evidence so directs. Note that that doesn't require the Administration to publicly declare beforehand a willingness to prosecute, just that the commission is not launched in a way that takes off the table the potential for later prosecutions.
Posted by: Steady Eddie | November 24, 2008 10:37 AM
"half of a Truth and Reconciliation commission"
We'll get none of a truth and reconciliation commission. The way these commissions work (eg in South Africa) is that individuals who tell the truth receive amnesty from prosecution. That't the whole truth, including implication of others. Those who lie or hide the truth are prosecuted. Under those conditions, people who are facing certain prosecution for torture and murder tend to come forward. If there is no threat of prosecution, they do not do so.
Posted by: Anonymous | November 24, 2008 2:14 PM
If you start out with the public intent to prosecute, that effort takes on a very different political cast than one that says, let's put the whole story out for everyone to see -- and then says, "well, now that we see how very egregious and terrible these actions were, it would be a dereliction of our constitutional oath not to prosecute where the evidence is strong and clear."
Posted by: tower defence | April 25, 2009 2:04 AM