Legal Commentary

A few weeks ago, I suggested the need for a metric to determine when we should convene a truth-and-reconciliation or other fact-finding commission as opposed to prosecution (or, I would add although I did not mention originally, civil litigation). This issue arises as the incoming Congress and Obama Administration must figure out whether and how to investigate alleged wrongdoing by the Bush Administration with respect to warrantless surveillance, torture, and detention, as well (potentially) as the politicization of the Department of Justice.

Commenters to the original post offered some good thoughts. And I did not see it until yesterday, but Geoffrey Stone on the U of C Faculty Blog suggested some reasons that, with respect to our current situation, a TRC is preferable. We might be able to isolate a few principles or considerations that push us towards a TRC and away from the judicial system:

1) The political and perception problems of an administration of one party investigating and prosecuting an administration of another. It has the potential for partisan manipulation and abuse, or at least the appearance of partisan manipulation and abuse. Stone's thought is consistent with those of one commenter to my initial post, who pointed out that in the notable situations in which criminal prosecutions have been used (Nazi Germany, de-Baathification), the former ruling party no longer remained part of the political system. I think this makes sense as a practical and political matter--it means that the criminal-justice system is reserved for the most extreme abuses of governmental authority, the types of abuses that lead to war and the forceful overthrow of a regime.

2) The uncertainty of the legal landscape, considering the state of the law and the context of events, including the likely good-faith of government officials and the presence of unique emergencies.

3) The weakness and unsuitability of the criminal-justice system as a discovery and fact-finding process, particularly as to large, systemic wrongdoing. In other words, a broad perspective on the overall misconduct of the administration may not be possible solely in a prosecution of, say, Alberto Gonzales.

4) The civil-litigation landscape. Civil litigation arguably is better able to address broad, systemic issues. And with broad discovery, fewer privileges, and a lower standard of proof, might reveal a greater amount of information. But Stone argues that current civil-litigation efforts to expose administration actions thus far have been unsuccessful, partly because courts have been highly receptive to administration arguments about national security, executive privilege, executive immunity, and state-secrets privilege. This suggests that civil litigation might work if the misconduct were less tied to national security (say, Watergate or, going way back, Teapot Dome).

Considering all of these factors, it seems a TRC is the better approach in the present context. I do wonder, however, whether a truly bipartisan commission (a la the 9/11 Commission) is possible, given the political fault lines in play here. The 9/11 Commission was not out to identify "wrongdoing" (i.e., who caused/allowed to happen this tragedy), only to give a narrative of "what happened" and perhaps identify mistakes. Even if such a Commission could be formed and all could agree on what the Bush Administration did (i.e., everyone agrees across party and ideology that the Administration established policies approving waterboarding and warrantless domestic surveillance), I am not sure we could reach bipartisan agreement on the propriety of that conduct. On the other hand, perhaps the point of a TRC is not to reach normative conclusions about right and wrong or guilt or liability, but to find real-world facts and leave the conclusions to the public and to history.