« Hillary Clinton and interbranch rotation | Main | Honor's Constitutional Moment: Now Downloadable »
Monday, November 24, 2008
Truth and Reconciliation or Prosecution?
Danielle Citron comments on news reports of the apparent decision by the incoming Obama Administration to pursue an independent commission investigation (a la the 9/11 Commission) of the Bush Administration's counterterrorism policies, including the use of torture and domestic spying, rather than to pursue criminal investigations and prosecutions against administration officials who approved and carried out those policies (potentially made impossible anyway by the chance of President Bush issuing a blanket pardon on his way out the door). And this comes as we see various new hurdles preventing the use of civil litigation to shed light on the administration's abuses, including the grant of retroactive immunity to the telecom companies for their role in domestic spying and the Supreme Court's coming decision this term in Iqbal on the use Bivens actions by terror suspects.
I am conflicted on the question. I recognize the political problems inherent in a new executive coming in and investigating and prosecuting members of the ancien regime. Merits aside, it looks too much like show trials and that is not what happens in a functioning democracy. On the other hand, it seems indisputable that, descriptively, the administration did engage in acts that violated the Constitution and laws of the United States, as well as international law. I categorically reject the "it's time to move forward and not look back" meme coming from many circles (often tauntingly linked to Obama's calls to get beyond partisanship--how can someone who claims to be above party disputes prosecute his political predecessor). In a democracy, there must be a public accounting for government misconduct and abuse of power--or an opportunity for legal processes to determine that, in fact, there was no misconduct or that the conduct was legally justified. And only if we know and make public what misconduct was committed can we ensure that it does not happen again. Not to mention that there genuinely were individual victims of many of the allegedly unlawful actions.
The question is one of choice of process--when do we use the sort of fact-finding, Truth-and-Reconciliation process to present a historical factual record and when do we use criminal and/or civil litigation to discover the truth and to punish or provide individual remedies? At least in popular and political discussions, I have yet to see a good explanation for when prosecution and punishment in the courts becomes inappropriate and should yield to investigatory commissions. It made sense as to 9/11, since the question there was whether governing mistakes were made, not whether laws were broken--any "blame" was political, not legal. It would not have made sense as to the Nazi regime. And I do not recall ever seeing a serious suggestion that the Nuremberg Trials were the wrong approach, that we should not have prosecuted and punished Nazi officials, but instead should have used a T&R proceeding (and no, I am not comparing the Bush Administration to the Nazis , other than to the extent both allegedly violated domestic and international legal rules).
So when is prosecution appropriate and when is a T&R Commission the necessary approach?
Posted by Howard Wasserman on November 24, 2008 at 12:23 PM in Current Affairs, Law and Politics | Permalink
TrackBack
TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341c6a7953ef010536156f3f970b
Listed below are links to weblogs that reference Truth and Reconciliation or Prosecution?:
Comments
I'll state dogmatically and curtly that we should not turn to a Truth and Reconciliation Commission in this instance. Dogmatically, because I don't have the time now to even adumbrate the reasons, but one should look at the growing literature on T&RCs to appreciate the *very different* historical, political, and social contexts (e.g., transitions from authoritarian rule: this is one reason one finds the literature labeled under the rubric 'transitional justice') and reasons that account for whatever success such bodies have had (and it's been far from unambiguous or so favorable as to cause one to unilaterally endorse T&RCs over the pursuit of criminal justice). There's a bit of a discussion initiated by a post from Kevin Jon Heller over at Opinio Juris (with a few good links): http://opiniojuris.org/2008/11/19/no-a-truth-and-reconciliation-commission-wouldnt-work/ I think those in favor of TR&Cs are the very same individuals who are too enthusiastic about the prospects of "restorative justice" (which I don't intend to be dismissive of, but rather a bit skeptical, especially insofar as it's intended to replace criminal justice).
For an excellent compilation of the literature on "transitional justice" see here: http://www.polisci.wisc.edu/tjdb/bib.htm
There's a section within this bibliography on "Truth, Truth-Telling, and Truth Commissions"
Posted by: Patrick S. O'Donnell | Nov 24, 2008 1:07:00 PM
Well, gee, Howard, I'm glad you've narrowed the choices down to this either/or!
Posted by: Simon | Nov 24, 2008 2:52:32 PM
Well, I suppose option 3 would be to ignore substantial evidence of past wrongdoing and hope it goes away and never gets repeated. Sorry for not mentioning that one explicitly enough.
Posted by: Howard Wasserman | Nov 24, 2008 2:56:40 PM
Well, don't let me keep you from your witch hunt. No doubt it's very productive - or at least chic - to foment a blanket pardon and exacerbate an environment that pushes deliberations off-book, discourages record-keeping and encourages such records as already exist to be "lost." It's a brilliant plan, and I'm sure we'll all be saved. Sorry, Howard, but with all due respect -- I mean that sincerely; Jurisdiction, Merits, and Non-Extant Rights was terrific -- what this looks like is cheap score-settling with an administration with whose policies you disagreed, or an attempt to salve the liberal conscience vis-a-vis the disapproval of the rest of the world for said administration.
Posted by: Simon | Nov 24, 2008 4:41:38 PM
FWIW, from the Associated Press today: "Obama advisers say there is little — if any — chance that his administration would bring criminal charges."
Posted by: Orin Kerr | Nov 24, 2008 9:35:11 PM
Howard, Thanks for taking the conversation forward to Prawfs. I so enjoyed your guest spot at CoOp! Just a quick note (a sort of follow up to you and Orin): the 9/11-esque Commission envisioned by Schwarz (and me in turn) would not involve prosecutions, but, like 9/11, would attest to the practices so that we can own them and explicitly decide in the light of day those that comport with our values and Constitution and those that do not. Some of the counterterrorism practices may be fully consistent with our Constitutition and we will need to say so. The problem has been the utter lack of transparency and the world's opinion that we have utterly failed to live by the values that we insist that others nations abide by. Thanks!
Posted by: Danielle Citron | Nov 25, 2008 7:02:16 AM
I recognize and accept the value of T&R and 9/11-type commissions as a means of revealing the truth and identifying right and wrong. But criminal and/or civil litigation also will, in the rendering of verdicts and judgments, attest to those practices that are consistent with our Constitution and values and which are not. But through litigation, we also punish past misconduct, provide individual remedies for past harms, and (hopefully) deter future misconduct).
So my question is why we choose one or the other--and why we decide to take punishment off the table. And specifically why, in this situation, choose a commission over prosecution and take punishment off the table. I actually am not suggesting we should pursue criminal investigations rather than a commission; as I said in the post, I can see arguments for both. I am looking for a procedural explanation for the procedural choice that is made, both in this case and generally.
Posted by: Howard Wasserman | Nov 25, 2008 7:38:21 AM
I sincerely hope that the Obama administration pursues crminal prosecutions vigorously, including against President Bush and his cabinet. Let this be the first time in American history that an incoming administration seeks vengeance against its predecessor. What a wonderful new precedent!
If you think the public recoiled from the spectacle of the Clinton impeachment - in large part because it seemed as if the Republicans were misusing the legal process to seek political revenge against their opponent - let's see how they view retribution against the losers of the last election. Bring it on.
Posted by: DBL | Nov 25, 2008 10:52:11 AM
Now that we have a law professor for president, there should be a contest to see who can come up with the worst policy idea that actually has a reasonable chance of happening during the new administration.
I nominate this for the current front-runner.
Reparations is probably in second place. It's an even worse idea, but it probably has less chance of passing.
A distant third is granting a pardon to everyone in prison on the ground that personal responsibility is a fallacious philosophical construct and a tool of oppression.
This TRC sounds like either (1) a move toward the third world where it's par for the course for the new regime to punish the old or (2) an invitation to partisan grandstanding.
Bush's enemies have arrived at their conclusions and would like subpoena power and the imprimatur of a government commission to back them up. Neither is necessary. Between FOIA, the new regime having access to the relevant information, and the likely willingness of many people to share information, the truth about the Bush administration is probably out there and won't be that hard to find. Supposedly the fourth estate is still good for something.
Posted by: KRS | Nov 25, 2008 2:03:04 PM
Howard,
I think you reached the heart of the matter in your first paragraph. Because of the pardon power, punishment is already off the table, whether the President-elect wants it to be or not. If the Obama administration appears eager to investigate and prosecute the Bush administration, Bush will anticipate (rightly or not) a politically motivated show trial. Bush will feel compelled to issue a blanket pardon.
I don't think Bush wants to grant such a pardon. I suspect he believes that his presidency will be vindicated by history (fwiw, I think he's wrong), and knows that such a pardon will make that less likely. Such a pardon would also weaken the executive branch going forward, so Obama doesn't want that either. A factfinding commission seems to be the only feasible option.
I think the distinction between Nuremberg (or de-Baathification in Irag) and a post-Bush factfinding commission (or South Africa's T&RC) is that in the former cases the entire "outgoing" ruling faction was decimated. This didn't quite happen with the Republicans in the election.
Finally, I nominate Orin Kerr and Jack Balkin to the commission, but I can't pick a third. Any suggestions?
Posted by: JP | Nov 25, 2008 4:34:16 PM
The American people should know that George W. Bush is not only a war criminal: he is also a hate-crime criminal.
George W. Bush had better stop committing hate crimes.
Submitted by Andrew Yu-Jen Wang
B.S., Summa Cum Laude, 1996
Messiah College, Grantham, PA
Lower Merion High School, Ardmore, PA, 1993
http://andrewyu-jenwang.blogspot.com/2008/12/what-did-you-think-of-that-naacp-anti.html
Posted by: Andrew Yu-Jen Wang | Dec 15, 2008 11:16:25 PM
The comments to this entry are closed.
