As the idea of creating an independent commission to investigate post-9/11 counter-terrorism policies continues to gain support, opponents of the idea have identified a favorite talking point: that an investigative commission would "criminalize policy differences." Senator Specter dutifully raised this objection at the Judiciary Committee hearing this week. But the real danger here is not that policy differences will be criminalized. In fact, it is the opposite: that unlawful conduct will be chalked up to policy differences and swept under the rug before the American public can even learn the full truth about what happened.
Because of the previous administration's largely successful efforts to keep information from Congress, the courts, and the media, there is still much we do not know about its policies. We do know, however, that officials have admitted to waterboarding detainees, which experts—including the current Attorney General—almost unanimously agree to be torture. We know that the President admitted to a program of wiretapping Americans without warrants. And information in the public domain overwhelmingly suggests that the government had a policy of "rendering" people, for the purpose of interrogation, to countries that are known to engage in torture. All three practices go against the plain text of statutes duly enacted by Congress. That information is more than sufficient to trigger not only the need, but the obligation to learn all of the facts surrounding these and other counter-terrorism policies.
Nonetheless, diehard supporters of the former administration continue to resist an investigation by invoking the specter of "criminalization." This is a red herring. While a commission might well find violations of criminal law (in which case, we clearly would no longer be in the realm of mere "policy differences"), the Department of Justice is unlikely to initiate criminal investigations, due to strong political pressures against prosecuting former government officials. Even if that were not the case, the existence of the notorious OLC opinions purporting to justify the illegal conduct would likely provide a defense that would discourage the Justice Department from pursuing this route.
The "criminalization" bogeyman is off-base for another reason: many of the most important ends a commission would serve have little or nothing to do with the investigation and punishment of specific crimes. To be sure, a commission would answer the question of whether particular policies were unlawful. But it also would answer equally vital questions that a prosecutor would have no reason (and no jurisdiction) to ask, including how and why our policies veered off course, what institutional failures allowed this to happen, how to fix those institutional failures to ensure that the problem will not recur, and how best to bring the policies in question back in line with the rule of law. And the commission's mandate to learn the truth would be much broader than the mandate held by a prosecutor, whose interest lies only in the facts of any given case.
Of course, there are some goals of criminal prosecution—achieving accountability and vindicating the rule of law, for instance—that a commission ought to share. There are a number of ways in which a commission could achieve these goals, even with criminal prosecution effectively off the table. To name just a few: the commission could highlight systemic problems that could be corrected through legislation; it could motivate voters to organize behind the issues in question and to demand better conduct by their elected representatives; it could send a message to the world about what our nation stands for; and it could serve as a warning to those who would stray from the rule of law in the future.
Commission opponents are right about one thing: to avoid a cycle of political recrimination, there should be a presumption against creating commissions to investigate the conduct of prior administrations. That presumption is already safely in place. As President Obama's lukewarm response to calls for an independent commission demonstrates, administrations are naturally reluctant to initiate such investigations, both because of the fear of setting a precedent and because of the potential for a political backlash. That presumption should be overcome, however, in sufficiently compelling cases—such as where high-level government officials have admitted to conduct that nearly all legal experts believe to be against the law.
In such cases, the vision of the "partisan witch hunt" falls away. Fidelity to the rule of law is—or at least, should be—a non-partisan issue on which all Americans agree. Indeed, the commission should not limit itself to investigating the actions of the Bush administration; it should examine the role of Congress, which has been controlled by Democrats for the past two years, in allowing or even aiding these actions. It also should examine whether any unlawful policies (such as extraordinary rendition) pre-dated the Bush administration and/or have continued into the Obama administration.
Policy differences are a natural part of political life in this country, and we must tolerate them. Unlawful conduct by government officials, however, must never be tolerated. We currently face a real risk that recent unlawful activities will come to be viewed as mere policy preferences, due to political pressures against doing what is necessary to learn the truth. Such a result—not the criminalization of policy differences, but the politicization of unlawful conduct—would be an affront to the rule of law. We need an independent commission to prevent that from happening.