What’s to be done about the lingering questions concerning the arguably unlawful activities of the Bush administration? I refer, for example, to such issues as the use of torture, the creation of secret prisons, the secret detentions of American citizens, and the NSA surveillance program. These actions, and many others, pose serious, still unresolved, questions about the legality and constitutionality of the government’s conduct.
We cannot and should not shut our eyes to these questions. And we should not let ourselves be distracted from these questions by other pressing issues, such as the economic crisis facing the nation. If for no other reason than to set clearer ground rules for the future, we need a full public understanding of the decisions of the Bush administration. We need to know who made them, why they were made, why they were made in secret, whether they were justified, whether they were legal, and whether we can establish better decision making processes for the future.
We need to examine these decisions not so much to exact vengeance – or even justice, but to learn from our experience. This is an important distinction. It is certainly not unprecedented for public officials to be criminally prosecuted for unlawful conduct. One need only recall Teapot Dome and Watergate to recognize that such prosecutions are perfectly plausible.
But criminal prosecutions of the members of an outgoing administration brought by the members of an incoming administration of a different political party are a terribly awkward business. The risk of actual or apparent partisan abuse in such circumstances is very real, and the Obama administration is almost surely interested in looking forward, rather than getting bogged down in potentially ugly and divisive disputes about the past. Moreover, the danger of unjust prosecution is especially great in situations like these, where the governing law is generally uncertain, the legal issues are complex, and the defendants may have acted in good faith at a time of national crisis. And, of course, criminal prosecutions in these circumstances run the risk of inhibiting future government officials from acting decisively in future crises.
I do not mean to suggest that criminal prosecutions for clearly and unambiguously unlawful conduct are unwarranted. If those conditions are satisfied, criminal punishment is appropriate. But such prosecutions will not enable us to do what we now most need to do, which is to gain a full public understanding of what our elected representatives did over the past eight years so we can openly and intelligently decide how to deal with similar challenges in the future.
To achieve that goal, we cannot rely on criminal prosecutions. Nor can we rely on other legal actions to ferret out the truth. Thus far, civil suits challenging the legality of the government’s detention, surveillance, and interrogation policies have generally failed to expose much about these programs, in part because the courts have given excessive weight to the Bush administration’s aggressive assertions of executive privilege, the state secrets privilege, and other national security-based claims of immunity. Given the current makeup of the federal judiciary, this is unlikely to change anytime soon.
In any event, it is not the function of courts to serve as general investigating bodies. Courts can certainly rectify specific legal wrongs, but what we need at the moment is a systematic and comprehensive understanding of the decisions of the Bush administration, and that is beyond the competence of the judiciary.
The right entity to initiate this inquiry is Congress. This is so, in part, because most of the decisions that most need the light of day involved efforts of the Bush administration to circumvent Congress’s role in our constitutional system. The most problematic judgments of the Bush administration were instituted in secret in an effort to avoid public accountability and to evade the fundamental checks and balances of the American government. In a democratic society, such secret decision making is a direct affront to the separation of power and poses a threat to the very premise of self-governance.
The inquiry should not be conducted by Congress itself, however. Congressional investigations of the alleged abuses of the Bush administration would invite partisan grandstanding. What is needed, instead, is an independent commission, appointed jointly by Congress and the President, on the model of the 9/11 Commission.
A distinguished bipartisan commission, with broad investigative powers, could issue a useful report about what went right and what went wrong in the secret decision making processes of the past eight years. With the passage of time, we are now past the point where national security considerations would still necessitate much secrecy about such decisions, and to the extent such issues still exist, the commission should be able to address them, as they addressed similar issues in the 9/11 investigation.
The establishment of such a commission should be a high and immediate priority of both the next Congress and the new administration. The nation needs and deserves a credible, independent and bipartisan investigation that will enable both Congress and the President to take appropriate steps to avoid serious missteps in the future, and that will enable the American people to finally know what, exactly, was done in their name.