Frederick A.O. Schwarz Jr. Before Hearing on "Truth Commission"
Testimony in support of a nonpartisan, independent commission of inquiry. Delivered before Senator Leahy's hearing, "Getting to the Truth Through a Nonpartisan Commission of Inquiry”
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(Photo courtesy of Diego M. Radzinschi/LEGAL TIMES)
Delivered before “Getting to the Truth Through a Nonpartisan Commission of Inquiry”
Testimony of Frederick A.O. Schwarz, Jr. in Support of a Nonpartisan, Independent Commission of Inquiry
Throughout American history, in times of crisis, the executive branch has accumulated significant new powers, some of which have been abused. Crisis always makes it tempting to ignore the wise restraints that both keep us free and reduce the likelihood of self-defeating mistakes. This nation has, at times, admirably set about correcting its course—realizing, as the dust settles or as previously secret facts are revealed, that constitutional and legal norms have been breached.
One such correction, in which I was involved, came in 1975-1976, when an investigation conducted by a Senate Select Committee—known as the "Church Committee" for its Chair, Senator Frank Church of Idaho—revealed intelligence agencies' excesses in all administrations from Franklin D. Roosevelt's through Richard M. Nixon's. The Church Committee found that the intelligence agencies, including the FBI, the CIA, the NSA and other components of the Defense Department, had exceeded their authority through abusive surveillance and disruption of political activity at home (e.g., trying to provoke Martin Luther King, Jr. to commit suicide) and unwise covert action abroad (e.g., hiring the Mafia to try to assassinate Cuba's Fidel Castro). While rank and file employees of these agencies directly committed abuses, the most serious breaches of duty were those of presidents and other senior executive branch officials who, the Committee determined, had the "responsibility for controlling intelligence activities and generally failed to assure compliance with the law."
The Church Committee's investigation illustrated what had been going wrong with our intelligence agencies and led to the enactment of the Foreign Intelligence Surveillance Act, which brought the government's intelligence practices back in line with our constitutional principles and ensured that intelligence resources were not wasted on inappropriate and counter-productive endeavors. Exposing the truth thus strengthened our democracy and our ability to keep the nation safe.
It is time once again for such a searching assessment and self-correction. The unspeakable acts of terrorism that occurred on September 11, 2001 demanded a strong response by our government and a rethinking of our national security policies. All of us would agree that some of the government's actions in response to 9-11 were necessary and productive. But there is evidence that some of the counter-terrorism policies and practices that were implemented after 9-11 departed from the rule of law and from our nation's shared values. This country has three choices for how it can respond to that evidence. For the reasons set forth in this testimony, the Brennan Center believes that an independent, non-partisan commission of inquiry to examine our counter-terrorism policies is the best of these options.
The first option is simply to do nothing. That approach would be ill-advised at best and dangerous at worst. As an initial matter, there is no question that this country is, and should remain, a nation of laws. If it is true that our government has operated outside the law in any of its counter-terrorism practices, we want to make sure that these practices are brought back into line with the law and that the problem does not happen again. This process of restoration is necessary, not only to stay true to this nation's core principles, but also to restore our standing in the eyes of the world as a champion of the rule of law. But in order to implement the changes necessary to fix our policies and guard against future abuses, we have to have all of the facts. As the Chairman of this Committee recently put it, "we must read the page before we turn it."
In addition, we need to understand the consequences of our counter-terrorism policies if we are serious about protecting this country from the threat of terrorism. Elsewhere, I have argued that some of our counter-terrorism policies, such as detaining suspects for years without charge and employing harsh interrogation techniques, have made our country less safe. Regardless of whether they have produced useful intelligence in specific cases, they have harmed us, on balance, by giving the Bin Ladens of the world powerful recruiting messages; alienating our allies and making their intelligence services less willing to cooperate with us; and placing our own troops at increased risk of mistreatment if they are captured abroad. We need to have a full understanding of what the effects of our policies have been in order to fix any damage that has resulted and to ensure that our policies going forward serve this nation's security interests.
The second option, championed by some, is to pursue criminal prosecution against those in the government who may have broken the law. This approach has superficial appeal. As Attorney General Holder has acknowledged, no one is above the law; in theory, if crimes were committed here, they should be prosecuted. The problem with this approach is that much of the conduct in question was sanctioned by the Justice Department's Office of Legal Counsel. As a result, criminal prosecution is both unlikely to occur and, if it did occur, unlikely to succeed. It might also be unfair in some cases—namely, those in which government actors relied on the opinions and were not in a position to judge the opinions' legal soundness.
Even if criminal prosecutions were a desirable and viable option, they would leave important questions unanswered. When official government policies stray from the rule of law, something has gone wrong with the system, and a systemic solution is required. In addition to knowing what happened, we need to know why and how it happened, what institutional failures allowed it to happen, and what steps must be taken to correct those institutional failures. Furthermore, as I have already noted, we need to know what harms have resulted from these actions and what needs to be done to mitigate those harms. These are critical questions for our safety as well as our commitment to the rule of law, and they would not be asked in a criminal proceeding.
The best way to get answers to these questions is to pursue the option that the Chairman of this Committee has proposed: an independent commission of inquiry established by Congress. A commission would shed much-needed light on exactly what our counter-terrorism policies have been, including information that even some members of Congress still do not have. To the extent any policies departed from the rule of law, the commission would examine the process by which these policies came into being, including who made the key decisions and whom they consulted—or did not consult. It would go beyond the symptoms—i.e., the policies themselves—and look for the root causes. Where appropriate, it would examine the effectiveness of the policies, and it would assess their impact on our national security and foreign relations. Based on what it learned, it would make informed recommendations about the reforms that may be necessary in order to ensure that our counter-terrorism policies respect the law and keep us safe. And it would do one additional thing that neither inaction nor criminal prosecution would do: Where allegations of unlawful or inappropriate conduct prove to be unsupported, it would air the facts and clear the names of those implicated.
In short, a commission would enable us to learn from the past without seeking punishment. One hundred and forty five years ago, shortly after his reelection in 1864, President Abraham Lincoln nicely articulated the value of such an approach:
"[L]et us study the incidents of [recent history] as philosophy to learn wisdom from and none of them as wrongs to be avenged."
It is in this fair-minded spirit that a commission should be established and then proceed. When its mandate and its approach are so understood, a nonpartisan commission could serve yet another worthy function: bringing Americans together.
Commissions of inquiry are a tried and true method of dealing with situations in which there may be serious problems in government. When done correctly, they are quite effective—as this nation's recent experience with the 9-11 Commission shows. As with the 9-11 Commission, a commission to examine counter-terrorism policies should be comprised of individuals with well-established reputations for integrity and impartiality. It must have full power to subpoena information, including classified information, and to enforce those subpoenas in court—a power that the 9-11 Commission possessed but never had to use, since the ability to subpoena information often spurs voluntary compliance. It also should have the authority to grant immunity to witnesses in response to their testimony, but it would be expected to use that authority sparingly and judiciously. The Church Committee had the authority to grant immunity, but managed to uncover a wide range of illegal activities without ever exercising that authority. Finally, the commission would need sufficient personnel and resources to do its job thoroughly and exactingly.
Several arguments have been raised against pursuing an independent commission, but none of them are persuasive. Some have argued that the matters in question involve sensitive national security information, and that it would be too risky to disclose this information to a commission (and pointless to proceed without it). This potential problem has been faced by many independent commissions and congressional investigatory bodies—including the Church Committee—and it has been dealt with successfully in each case. In the case of the 9-11 Commission, for example, much of the relevant information was classified at the highest levels. The commission members and staff obtained the necessary clearances to review the classified information, held closed sessions where necessary, and produced both classified and unclassified versions of their reports. No classified information was leaked.
Another argument is that our country should be looking forward, not backward. That is a false choice, much like the false choice between our safety and our values that President Obama rejected in his inaugural address. We cannot fix the damage that may have been caused by some our counter-terrorism policies, nor can we institute the reforms necessary to ensure effective and lawful policies going forward, if we don't know what happened. President Obama acknowledged this principle, albeit in a different context, when he addressed a joint session of Congress last week. After discussing failures of responsibility that led to the current economic crisis, he said: "I say this not to lay blame or look backwards, but because it is only by understanding how we arrived at this moment that we'll be able to lift ourselves out of this predicament." That principle is just as true for mistakes in our counter-terrorism policies as it is for mistakes in our financial or mortgage systems.
There are those who argue that our country faces more a more serious and immediate crisis right now—our ailing economy—and that an independent commission would be a distraction from that crisis. That is one reason the Brennan Center supports an independent commission, rather than a congressional inquiry. Congress is preoccupied right now with fixing our economy, and properly so. An independent commission could be set in motion and left to do its work without disturbing the operations of government. It is highly unlikely that any of the persons chosen to serve on or appear before the commission would otherwise be engaged in fixing the economy, since there is little overlap in the relevant issues, and so there is no reason to fear that the commission would be a "distraction." And the fact that the economy is our government's first priority right now does not excuse the government from taking action on other serious problems this country faces. The possible existence of unlawful and counter-productive counter-terrorism policies, affecting our image in the world and our national security, undoubtedly qualifies as a serious problem that requires action.
The least persuasive argument against a commission is that it would be a "partisan" exercise, and that it would divide the country and/or lead to a cycle of political recrimination. That argument fundamentally misunderstands what the true function and mandate of an independent commission would be. The commission would be looking at possible departures, not from a preferred party position, but from the rule of law. The rule of law is not a partisan issue; it is a founding principle of our nation that has guided Democrats and Republicans alike throughout this country's history. Serious allegations of unlawful government policies are not a common occurrence. Where there is any reason to believe the government has strayed from the rule of law, the only non-partisan response is to pursue meaningful action in order to learn the full truth. That is why prominent individuals from both sides of the political spectrum, including some who sit here today, have joined the call for an independent commission. Indeed, by reaffirming the guiding principles and shared values of our nation, an independent commission may help bring Americans together.
The bottom line is that we owe it to ourselves and our country to learn the facts about our government's counter-terrorism policies. We know that abuses may have occurred, and that the perception of these abuses has undermined our standing in the world and our fight for the hearts and minds of those who could be persuaded to do us harm. We must not flinch from learning the truth. That is the only way to stay true to our principles, correct our course, and restore our moral standing in the eyes of the world. That, in turn, will make us safer and stronger. For, as has been true throughout our history, America is at its best when we "confront our mistakes and resolve not to repeat them. If we do not, we will decline. But, if we do, our future will be worthy of the best of our past."
 Mr. Schwarz is Chief Counsel at the Brennan Center for Justice at NYU Law School. He was Chief Counsel for the United States Senate's Committee to Study Governmental Operations with Respect to Intelligence Activities, commonly known as the Church Committee. He is co-author (along with Aziz Huq) of Unchecked and Unbalanced: Presidential Power in a Time of Terror (The New Press, 2007). For many years a litigation partner in a leading New York City law firm, Mr. Schwarz's other governmental service includes being the Corporation Counsel for New York City, and chairing the New York City Charter Revision Commission and the City's Campaign Finance Board. Mr. Schwarz's testimony reflects his own views as well as the views of the Brennan Center.
 Final Report of the Select Committee to Study Governmental Operations With Respect to Intelligence Activities, Book II, 1 S. Rep. No. 94-755, at 137 (1976).
 See Schwarz & Huq, supra n. 1. I am also appending to this testimony my testimony before the Constitution Subcommittee in its September 16, 2008 hearing on "Restoring the Rule of Law." That testimony provides further discussion on the need for an independent commission.
 Of course, going forward, we cannot have a system in which secret and patently unsound OLC opinions are permitted to insulate unlawful conduct. OLC's role is thus one of the issues that should be considered by the independent commission. If the commission determines that OLC opinions were misused to justify unlawful conduct or otherwise did not meet the professional obligations of the office, it should examine possible reforms to prevent a future recurrence.
 Two of those root causes, in my view, are excessive government secrecy, which allows and even encourages misconduct by removing accountability, and inadequate congressional oversight. I will not expound on these here, but I believe an independent commission would need to address them in order to assemble a full picture of what went wrong with our post-9-11 counter-terrorism policies.
 8 Roy P. Basler, The Collected Works of Abraham Lincoln 101 (Rutgers Univ. Press 1974) (1953).
 In fact, witnesses have frequently disclosed their own potentially illegal activities to investigative commissions and committees without requesting immunity. One can hypothesize many reasons for this—for example, witnesses who feel justified in their actions may want to tell their "side of the story," or high-level government officials may fear the political ramifications of asserting the protections of the Fifth Amendment when asked about government policies. Whatever the explanation, investigative committees and commissions in this country have been able to fulfill their missions without granting "blanket immunity" to witnesses.
 I have presented here only a brief summary of the most important features that a well-designed commission should possess. If Congress continues to pursue the idea of an independent commission, I and others who have participated in inquiries of this kind could provide assistance on a more detailed level if that would be helpful.
 In this case, learning the full truth would entail examining not only whether Bush administration policies violated the law, but also whether any unlawful policies pre-dated the Bush administration and/or have continued into the Obama administration. This would mirror the approach taken by the Church Committee and the 9-11 Commission, neither of which limited their inquiry to a single administration, and both of which found abuses or mistakes in administrations of both parties.
 Interim Report of the Select Committee to Study Governmental Operations With Respect to Intelligence Activities, S. Rep. No. 94-465, at 285 (1975). While this thought was expressed in the Interim Report, it pervaded all of the Church Committee's work.