Legal Commentary

One of the most distinctive features of post-9/11 governmental reforms has been the role of the 9/11 Commission, the independent investigatory body created by Congress following the Congress's own failure to adequately investigate the 9/11 attacks. (The Bush Administration was against the Commission before later being in favor of it, though the administration never fully embraced it.) The Commission's most important task was creating a reasonably independent, historical record, and providing a descriptive narrative of the events leading up to and including the attacks. The descriptive parts of the Commission's Report have received their share of criticisms, largely for the Commission's hesitation, if not unwillingness, to identify specific individuals as worthy of particular blame for their nonfeasance. But even the Commission's mainstream critics -- as opposed to those who radically question the basic premise that the attacks were led by al Qaeda (questions that I'll return to in a later post) -- concede that the Report was exhaustively researched, disclosed lots of information that would not otherwise have been made available, and came to generally correct conclusions. It made best seller lists, sold approximately 600,000 copies (despite being available as a free download). It was nominated for a National Book Award. And critics seemed moved by its dramatic opening and narrative sweep.

But beyond its role in producing an authoritative historical document, the Commission set the agenda for reforms across a wide spectrum of national security and administrative issues. In its policy formation role, the Commission did what it was charged by Congress to do -- report to the President and Congress "recommendations for corrective measures that can be taken to prevent acts of terrorism" -- and did what independent commissions do as a general practice, which is to act as non-political experts capable of seeing beyond short-term political gain to large-scale public interests and needs. What's so surprising, though, is the extent of the Commission's success, at least in terms of influence. Commissions rarely have significant direct effects on legislation or the public agenda. Although they may garner some attention when they are initially created, independent commissions and advisory committees are rarely remembered by the time they issue their report, much less years after the fact. The 9/11 Commission, by contrast, played a critical role in the passage of the Intelligence Reform and Terrorism Prevention Act of 2004, which reorganized the intelligence community, and Congress and the President have adopted and continue to adopt many of the Commission's other recommendations by legislation and executive order. The 9/11 Commission brand seems to have significant value for policy proposals.

This influence continues today, on the seventh anniversary of the attacks. Some Commission members, along with other, similarly prominent individuals, have issued a "report card" evaluating the government's performance post-9/11 in protecting the country from terrorist attacks, using the Commission's recommendation as a baseline against which government performance is evaluated. After the jump: Why I don't think this is necessarily such a great thing.

To play devil's advocate, and to follow up on a line of argument that Richard Posner and others have made, I've suggested in an article forthcoming in the W&L Law Review (current draft here, and there's still time for me to take some criticism and comments) that maybe such influence isn't such a great idea; at minimum it presents concerns that Congress and the President should consider the next time a high-profile independent commission is created. The paper's about more than this -- above all it's an institutional history of the Commission and a consideration of the independent commission form as a means to force transparency on a recalcitrant executive branch. In its informational mode, I think the Commission did an admirable job both as a legal and political entity. The political manuevering involved in the Commission's operations were pretty obvious and are discussed in the Commission co-chairs insider account of the Commission, as well as NY Times reporter Philip Shenon's more critical account; in terms of legal issues, some arose from the institutional design that Congress used in creating the Commission, and others arose in the legal strategies the Commission used in confronting the White House and executive branch agencies. My evaluation in this part of the paper is that an institutional solution to an informational crisis -- failure of inter-branch oversight and existing legal means to squeeze information out of the executive branch -- is likely in certain instances to prove more effective than constitutional or statutory solutions.

My evaluation of the commission form for policy formation is more critical of the Commission. To summarize it: Independent commissions are usually failures because they have neither a constituency nor any accountability; they are frequently created to meet some symbolic need, and there's rarely much motivation for anyone to adopt or even pay much attention to their conclusions. But when they succeed, they can really succeed -- because of the apparent legitimacy of its operations and the desire for a seemingly non- or bi-partisan entity as the controversy over the Iraq War was heating up, the 9/11 Commission found itself and explicitly made itself an authoritative source of information and policy. Its co-chairs, Thomas Kean and Lee Hamilton, made every effort to get public and political attention for the Commission's Report, and even formed an NGO with other commissioners after the Commission shut down to publicize the Report. They developed an awesome brand that helped sell policy proposals -- many of which had been bouncing around Washington think tanks and earlier commissions but had previously failed to gain sufficient political support. As today's report card again demonstrates, the Commission's imprimatur has significant moral authority, although the Commission no longer exists, was largely unaccountable during its operations, and can't be voted out of office.

While I can only imagine the frustration of commissions and commissioners when their reports do nothing but gather dust on the shelf, I'm not sure that the opposite -- a commission whose imprimatur grants moral authority to a policy proposal and constitutes a baseline for performance evaluation -- is a good means to develop and consider important policy matters. I wouldn't throw the baby out with the bathwater. My suggestion would be to draft into the legislation or executive order creating an independent commission some deliberation-forcing mechanism on the political decision maker. Perhaps the Commission could be required to make multiple alternative proposals and identify the costs, benefits, and risks of each; perhaps it could be forbidden from making policy proposals at all (though that certainly risks losing the baby).

I think the commission form is an essential workaround for gathering and initially processing information, and it may be a good source for policy ideas. But the very thing that grants it some degree of legitimacy -- its seeming independence from political actors -- is also what gives it potentially undue policy influence in times of national crisis and political stalemate.