Legal Commentary

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?