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Berns on prerogative and truth commissions

By Jack M. Balkin

I strongly recommend reading Walter Berns's op-ed in Saturday's Wall Street Journal on presidential prerogative. Like Harvey Mansfield (and John Yoo), Berns offers a reading of Article II that basically incorporates the theory of "prerogative" from Locke's Second Treatise. Especially interesting is the conclusion to his essay:

Questions arise: Was the Constitution or, better, the nation actually in jeopardy after 9/11? Was Mr. Bush entitled to imprison the terrorists in Guantanamo? Were the interrogations justified? Were they more severe than necessary? Did they prove useful in protecting the nation and its citizens? These are the sorts of questions Locke may have had in mind in his chapter on the prerogative. Who, he then asked, shall be judge whether "this power is made right use of?" Initially, of course, the executive but, ultimately, the people.

The executive in our case, at least to begin with, is represented by the three Justice Department officials who wrote the memos that Mr. Graham and many members of the Obama administration have found offensive. They have been accused of justifying torture, but they have not yet been given the opportunity in an official setting or forum to defend what they did.

That forum could be a committee of Congress or a "truth commission" -- so long as, in addition to the assistance of counsel, they would be judged by "an impartial jury," have the right to call witnesses in their favor, to call for the release of evidence including the CIA memos showing the success of enhanced interrogations, and the right to "confront the witnesses" against them as the Constitution's Fifth and Sixth Amendments provide. There is much to be said for a process that, among other things, would require Nancy Pelosi to testify under oath.

One is not sure, of course, whether Berns is being completely serious in his seeming quasi-endorsement of a "truth commission." But I do not think that anyone should be dissuaded from supporting such a commission by the prospect of requiring the Speaker to testify under oath. Many Democrats have absolutely nothing to be proud of with regard to their acquiescence to the Bush Administration and its policies of torture and rendition to countries that torture. Much was available prior to the release of the Abu Ghraib photographs, and not one prominent Democrat was critical of what was clearly taking place. Sen. Jay Rockefeller publicly endorsed "extraordinary rendition" when it was clear that torture would be used. It would not shock me if Speaker Pelosi has been less than fully candid, though, frankly, it would also not surprise me if the CIA is basically distorting the record and that Pelosi's story will stand up. But, surely, no one should oppose a truth commission simply because a number of Democrats may end up being tarnished (along with far more Bushies).

Full post as published by Balkinization on May 26, 2009 (boomark / email).