justice after bush: prosecuting an outlaw administration

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HARPER’S MAGAZINE / DECEMBER 2008 $6.95

JUSTICE AFTER BUSHProsecuting an Outlaw Administration

By Scott Horton

MANDELA’S SMILENotes on South Africa’s Failed Revolution

By Breyten Breytenbach

WHITE-BREAD JESUSA story by Robert Coover

Also: Francine Prose and Michel Houellebecq

J O H N G R A Y O N T H E F I N A N C I A L M E L T D O W N

(cv1 a)December US SUBS Cover Final2 10/24/08 10:03 AM

i. the crimes

Americans may wish toavoid what is necessary.We may believe that con-cerns about presidentiallawbreaking are naive.That all presidents com-mit crimes. We may pre-tend that George W.Bush and his senior offi-cers could not have com-mitted crimes signifi-cantly worse than thoseof their predecessors. Wemay fear what it wouldmean to acknowledgesuch crimes, much less topunish them. But avoiding this task, simply “mov-ing on,” is not possible.

This administration did more than commitcrimes. It waged war against the law itself. It trans-formed the Justice Department into a vehicle forvoter suppression, and it also summarily dismissedthe U.S. attorneys who attempted to investigateits wrongdoing. It issued wartime contracts tosubstandard vendors with inside connections, andit also defunded efforts to police their perfor-mance. It spied on church groups and politicalprotesters, and it also introduced a sweeping sur-veillance program that was so clearly illegal thatvirtually the entire senior echelon of the JusticeDepartment threatened to (but did not in fact)tender their resignations over it. It waged an illegaland disastrous war, and it did so by falsely repre-

senting to Congress andto the American publicnearly every piece of in-telligence it had on Iraq.And through it all, as if tounderscore its contemptfor any authority but itsown, the administrationissued more than a hun-dred carefully crafted“signing statements” thatraised pervasive doubtabout whether the presi-dent would even accedeto bills that he himselfhad signed into law.

No prior administra-tion has been so system-

atically or so brazenly lawless. Yet it is no simplematter to prosecute a former president or his seniorofficers. There is no precedent for such a prosecu-tion, and even if there was, the very breadth andaudacity of the administration’s activities wouldmake the process so complex as to defy systems ofjustice far less fragmented than our own. But thatonly means choices must be made. Indeed, inweighing the enormity of the administration’stransgressions against the realistic prospect of jus-tice, it is possible to determine not only the crimethat calls most clearly for prosecution but also thecrime that is most likely to be successfully prose-cuted. In both cases, that crime is torture.

There can be no doubt that torture is illegal.There is no wartime exception for torture, nor isthere an exception for prisoners or “enemy com-

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R E P O R T

JUSTICE AFTER BUSHProsecuting an outlaw administration

By Scott Horton

Scott Horton, an attorney in New York City, writes the daily weblog No Comment for Harpers.org. His last article forHarper’s Magazine, “Vote Machine,” appeared in the March 2008 issue.

Prisoner 3, a monotype by David Fox. All artwork © David Fox.Courtesy davidfoxstudio.com and George Adams Gallery, New York City

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batants,” nor is there an exception for “enhanced”methods. The authors of the Constitution forbade“cruel and unusual punishment,” the details ofthat prohibition were made explicit in the Gene-va Conventions (“No physical or mental torture,nor any other form of coercion, may be inflicted on

prisoners of war to secure from them informationof any kind whatever”), and that definition has inturn become subject to U.S. enforcement throughthe Uniform Code of Military Justice, the U.S.Criminal Code, and several acts of Congress.1

Nor can there be any doubt that this adminis-tration conspired to commit torture: Water-boarding. Hypothermia. Psychotropic drugs. Sex-ual humiliation. Secretly transporting prisonersto other countries that use even more brutal tech-niques. The administration has carefully docu-mented these actions and, in many cases, proud-

ly proclaimed them. The written guidelines forinterrogations at Guantánamo Bay, for instance,describe several techniques for degrading and phys-ically debilitating prisoners, including the “force-ful removal of detainees’ clothing” and the use of“stress positions.” And in a 2006 radio interview,

Dick Cheney said simply that the useof waterboarding to obtain intelli-gence was a “no-brainer.”2

Finally, there can be no doubt thatthe administration was aware of thepotential criminality of these acts.In January 2002, White Houselawyers began generating a series ofmemos outlining the administration’smotivation for torturing. Theyclaimed that “the war against ter-rorism is a new kind of war” requir-ing an enhanced “ability to quicklyobtain information from capturedterrorists” and that “this new para-digm renders obsolete Geneva’s strictlimitations on questioning of ene-my prisoners.” The legal term forsuch contemplation is mens rea, or“guilty mind,” and it is an importantconsideration in criminal trials.Which is perhaps the reason thatJohn Ashcroft—when he, Dick Che-ney, Colin Powell, Condoleezza Rice,Donald Rumsfeld, and George Tenetgathered at the White House in 2002to formally approve the application

of specific torture methods—asked the assem-bled, “Why are we talking about this in the WhiteHouse? History will not judge this kindly.”3

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1 In addition to being illegal, torture is profoundly un-American. The central premise of the American experi-ment is the belief, informed by Enlightenment principles, thatthe dignity and worth of the individual is at least as impor-tant as that of the state. This belief weighed heavily on theminds of the Founders. The new American military was tobe a force of yeoman soldiers, citizens in peacetime who wereto be regarded as no less than citizens in wartime. Enemysoldiers likewise were to be treated with respect. GeorgeWashington, in the winter of 1776, sent a written order toofficers overseeing prisoners: “Treat them with humanity.”And in 1863, at another time of crisis, Abraham Lincolnincluded the prohibition of torture in the first Americancodification of the laws of war, which he also issued as a di-rect order to his field commanders. By way of such Amer-ican leadership, the prohibition on torture was graduallyabsorbed into international law.

2 Cheney at the time declined to refer to this practice as tor-ture, preferring instead to describe it as “robust interroga-tion,” and that reluctance has been echoed in the press. Imyself was twice warned by PBS producers, in advance ofappearances on The Newshour with Jim Lehrer, that Icould use the word “torture” in the abstract but that I wasto refrain from applying it to the administration’s policies.And after an interview with CNN in which I spoke of theadministration’s torture policy, I was told by the produc-er, “That’s okay for CNN International, but we can’t useit on the domestic feed.” More recently, however, theconsensus appears to be that “torture” is a perfectly ade-quate description of administration policy. In the vice-presidential debates, Joe Biden said that Cheney has “donemore harm than any other single elected official in mem-ory in terms of shredding the Constitution. You know—condoning torture.” In the first presidential debate, JohnMcCain said we must ensure “that we have people who aretrained interrogators so that we don’t ever torture a pris-oner ever again.” And Barack Obama, though vague,seemed to accept this formulation. “I give Senator McCaingreat credit on the torture issue,” he said, “for havingidentified that as something that undermines our long-term security.”3 In an interview with Jane Mayer of The New Yorker,a former senior CIA official with knowledge of the ad-ministration’s torture program summarized its attitudemore bluntly: “Laws? Like who the fuck cares?”

Harpy, oil on canvas, by David Fox


ii. the consequences

of inaction

The accuracy of Ashcroft’s prediction re-mains to be determined. The United Statesdoes, in fact, have a long history of prosecut-ing torturers, but the punishments have variedconsiderably. In 1902, U.S. Army Captain Ed-win Glenn confessed to and was court-martialed for using “the water cure” on Fil-ipinos as part of the U.S. prosecution of theSpanish-American War. He was required topay a fifty-dollar fine. And in 1926, when theMississippi Supreme Court declared water-boarding to be torture and overturned the con-viction of a man who had confessed to anothercrime under its application, the police whohad elicited the confession went entirely un-punished. In other circumstances, though, theconsequences have been more significant. In1983, an east Texas sheriff named James Park-er was convicted of waterboarding six men inorder to coerce confessions. He was sentencedto ten years in federal prison. And whenAmerican prosecutors convicted Japanese offi-cials at the end of World War II of war crimesthat included waterboarding, the sentencesought, and obtained in some of the cases, wasdeath. Which is not to say that administrationofficials will or should face similarly dire sanc-tion. But such consequences are a measure ofthe gravity of the crime.

Waterboarding is far from the worst that de-tainees have suffered under U.S. supervision.Its use is especially worthy of note, however,because it is universally understood that 1) theadministration authorized waterboarding, and2) waterboarding is a serious crime.4

Open criminality is a cancer on democracy.It implicates all who know of the conduct andfail to act. Such compliance presents a practicalcrisis, in that a government that is allowed totorture will inevitably transgress other legal lim-its. But it also presents an existential politicalcrisis. Many democracies have simply collapsedas the people permitted their leaders to aban-don the rule of law in the face of alleged exter-nal threats. The turn to torture was rapid, forinstance, in Argentina at the time of the DirtyWar and in Chile after the American-directedcoup against Salvador Allende. In both cases,that turn had little to do with a perceived bene-fit from the use of torture in interrogation. Tothe contrary, the very criminality of the act hada talismanic significance. It asserted the prima-cy of the will of the torturer. It made the claim,for all to accept or reject, that the ruler was thelaw. Such a claim is, of course, intolerable todemocracy, which presupposes, as ThomasPaine wrote, that “the law ought to be King;and there ought to be no other.”

Reasserting the rule of law is no simple mat-ter. A new administration may—or may not—bring an end to open torture in the UnitedStates, but it will not bring an end to ourknowledge and acceptance of what has alreadytaken place. If the people wish to maintainsovereignty, they must also reclaim responsibil-ity for the actions taken in their name. As ofyet, they have not. Pursuing the Bush Admin-istration for crimes long known to the publicmay amount to a kind of hypocrisy, but it is anecessary hypocrisy. The alternative, simplydoing nothing, not only ratifies torture; it rati-fies the failure of the people to control the ac-tions of their government.5

iii. possible methods

of sanction

Torture is a war crime, and war crimes pre-sent an unusual legal challenge. They can beprosecuted domestically, like any other crime.But because they are war crimes, they also aresubject to enforcement by all nations, under awell-established principle of universal jurisdic-tion. Making matters more complex, suchcrimes can be prosecuted not only in standingcourts here or abroad but also in domestic orinternational ad hoc courts—like those con-vened for the Nuremberg trials—designed to

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4 This last point is not even slightly controversial. RichardArmitage, a Republican former Navy officer who servedas deputy secretary of state from 2001 to 2005, is likelythe highest-ranking administration official to personallyhave experienced this form of torture. In the late Sixties,he was waterboarded as part of a training program—Survival, Evasion, Resistance, and Escape, or SERE—designed to prepare military personnel to resist enemy in-terrogators. His conclusion was straightforward. “Ofcourse waterboarding is torture,” he told the BBC in2007. “I can’t believe we’re even debating it.” Militarylawyers agree. In a 2007 letter to Senate Judiciary Com-mittee Chairman Patrick Leahy, four retired judge advo-cates general hammered the point again and again. “Wa-terboarding is inhumane, it is torture, and it is illegal,” theywrote, adding that “it is not, and never has been, a com-plex issue, and even to suggest otherwise does a terrible dis-service to this nation.” Even Republican Senator LindseyGraham, himself a onetime reserve military judge andsometime supporter of administration detainee policy, ad-mits that waterboarding is illegal. “I don’t think you haveto have a lot of knowledge about the law,” he said in2007, “to understand this technique violates Geneva Con-vention Common Article Three, the War Crimes statutes,and many other statutes that are in place.”

5 It is not without justification that Bush was able toclaim in 2005, “We had an accountability moment, andthat’s called the 2004 elections.” Such taunts recall the(likely apocryphal) moment when William Tweed, thecorrupt head of New York’s Tammany Hall, was con-fronted with indisputable evidence of graft. “Well,” hesaid, “what are you going to do about it?”


deal with specific political concerns. Variouscombinations are suited to different situations:

international criminal tribunal

In recent years, nations have joined togetheron an ad hoc basis, often with U.S. support orunder the auspices of the United Nations, toprosecute military and political figures fromCambodia, Rwanda, West Africa, and the for-mer Yugoslavia. Many of these tribunals are stillin progress and thus far have achieved mixedresults. But they have by and large followed apredictable pattern. Rather than attempting toprosecute all potential war criminals, they haveinstead focused on those in positions of authori-ty whose action or inaction had broad conse-quences. And they have shown a particularconcern for offenses committed systematicallyagainst persons outside of combat, who in manycases have been disarmed and taken prisoner.

The precedent for all of these tribunals wasthe Nuremberg trials, convened at the end ofWorld War II. Under U.S. leadership, the Al-lies prosecuted not only leaders of the NaziParty but also industrialists, doctors, andprison commandants. The Americans and So-viets also wanted to prosecute the people whohad created the legal framework for the Naziregime, but British and French leaders object-ed. Consequently, the United States, actingon its own, convened a separate Nuremberg

tribunal to try lawyers, judges, and legal poli-cymakers. In doing so, it established the prin-ciple that policymakers who overrode themandatory prohibitions of international lawagainst harming prisoners in wartime could beprosecuted as war criminals, no matter howmany internal memos they had written to the contrary.

The International Criminal Court, headquar-tered in the Netherlands, was created in 1998 toprovide a permanent version of such a tribunal.The ICC bears many traces of U.S. authorship,and indeed its establishment, in one form or an-other, was urged by presidents from Thomas Jef-ferson to Bill Clinton. But American conserva-tives, opposing what they saw as a limitation onAmerican sovereignty, have blocked the U.S.from joining the 108 other nations that havesigned the Court’s foundational treaty. Andeven the institution’s strongest advocates agreethat, although the ICC is suited to prosecutingpolitical leaders in minor states, it was never in-tended as a check on the great powers. In fact,the ICC’s success depends upon its gaining thesupport of those great powers.

As things stand it would be legally very diffi-cult and politically impossible for the ICC toindict American policymakers for war crimes,and even more difficult for an ad hoc group ofnations to do so. Moreover, any such effortwould probably provoke a public-opinion back-lash within the United States.

54 HARPER’S MAGAZINE / DECEMBER 2008 MP Kicking, oil on canvas, by David Fox

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foreign courts

Most crimes are subject to sanction on thebasis of territoriality—that is, the crime isviewed as having occurred on the soil of oneparticular state, and that state has the right toenforce its criminal law by prosecuting thecrime or not. War crimes, however, are notsubject to this territorial limitation. Any na-tion that has a reasonable relationship to thecrime can prosecute the alleged criminal—thestate where the offense occurred, any of thewarring states, or a state whose nationals wereharmed or mistreated. Consequently, manyother nations have standing, under interna-tional law, to pursue war-crimes prosecutionsagainst U.S. citizens.

The example of Augusto Pinochet showshow such an approach might unfold. In 1998,the onetime dictator of Chile, then eighty-two,was seized in Britain on a Spanish arrest war-rant. He was charged with several crimes stem-ming from his seventeen years in power—including torture, illegal detention, and forceddisappearances—and placed under house arrestin a Surrey mansion while diplomats from allthree countries debated the next steps. Afterseveral months of complex legal proceedings,the British determined that Pinochet was med-ically unfit to stand trial and returned him toChile, thus maintaining their claim to jurisdic-tion without actually pursuing a prosecution.Even this attenuated process would be difficultto replicate with an American political figure,however. Most nations that have a record ofprosecuting war crimes are close allies of theUnited States and would be justifiably con-cerned about the practicalities of maintainingpositive defense relations with the world’s pre-eminent power. Moreover, the United States—like Chile—almost certainly would not extra-dite a former official for such purposes.

At present, however, one criminal prosecutionis already pending. It arises from the abduction inItaly, under the CIA’s “extraordinary rendition”program, of an Egyptian cleric named HassanMustafa Osama Nasr. Twenty-six Americans—including diplomats, intelligence officers, and amilitary attaché—face criminal charges in ab-sentia in the case. For the Americans the abduc-tion was a sensitive national-security operation.But for the Italian criminal-justice authorities itwas simply the armed assault and kidnapping of aresident alien. Even if, as widely expected, thecase produces convictions, the American opera-tives will not be extradited to Italy. They will,however, have difficulties traveling outside theUnited States.

Even this mild form of sanction, however,fails to address the domestic political problem.

True justice cannot be compelled from with-out. If the United States wishes to demonstrateto the world, and to itself, that its abdication ofhuman-rights principles was an anomaly, it willhave to do so under its own auspices.

domestic courts

Most violations of the laws of war are pun-ished through a military court system. Underthe Uniform Code of Military Justice, whichprovides the tools for enforcement of the lawsof war in the United States, civilians as well asuniformed service members may be prosecut-ed, though such prosecutions are rare and raisesignificant constitutional issues. Moreover,such systems are fine for punishing errant sol-diers, but they seldom function properly whenthe culpable person is far up the chain of com-mand. This is largely because military justice isnot concerned exclusively with justice; it isalso concerned with upholding command au-thority. There is little likelihood, therefore,that policymakers would be prosecuted beforea court-martial.

Torture is forbidden by federal law as well.6Could a federal prosecutor take it upon him-self to enforce that law? Alberto Gonzales ex-pressed concern in a 2002 memo that a prose-cutor might display sufficient independenceto do just that. But thus far none has. Thescandal surrounding the dismissal of nineU.S. attorneys in 2006 helps explain why: theBush Administration has maintained an un-precedentedly tight rein on its prosecutors,acting harshly when they depart from theprescribed political path. Indeed, so manyhigh-level figures at Justice were involved increating the legal mechanism for torture thatthe Justice Department has effectively dis-qualified itself as an investigative vehicle,even under a new administration.

Another major obstacle to domestic prose-cution will be pardons. The exercise of a presi-dential pardon to protect war criminals wouldviolate international law and would not be re-spected outside the territory of the UnitedStates. Under the Constitution, however,Bush’s pardon power is nonetheless nearly ab-solute. Those advocating a pardon hope that itwould put an end to questions about criminalconduct, but historical experience suggests

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6 18 U.S.C. § 2340 makes it a crime for any “personacting under the color of law” to “inflict severe physicalor mental pain or suffering (other than pain or sufferingincidental to lawful sanctions) upon another personwithin his custody or physical control.” The penalty forthis crime—as Bush’s Office of Legal Counsel carefullynoted in a 2003 memo on the subject—is up to twentyyears in federal prison.


that a pardon might have just the opposite ef-fect. It would implicitly concede that seriouscrimes were in fact committed; the publicwould not necessarily reject a pardon, but itmight well insist on full disclosure of what wasdone; and the president’s political party likelywould pay a significant price for all of this, asRepublicans experienced in the election fol-lowing Gerald Ford’s decision to pardonRichard Nixon.

Pardons would have another unintended ef-fect. Under well-established notions of interna-tional law, the fact that a state attempts to im-munize officeholders from prosecution (such asby the issuance of a presidential pardon) wouldboomerang by actually conferring on otherstates the jurisdiction to prosecute.

commission of inquiry

In recent decades, the commission of in-quiry, often in the form of a “truth and recon-ciliation commission,” has established itself asthe preferred means of approaching politicallysensitive issues such as war crimes while avoid-ing the destabilization that might result fromdirect prosecutions. In Argentina, Chile, EastTimor, Peru, and South Africa, newly electedleaders feared that the criminal prosecution oftheir predecessors would wreck the fragile po-litical consensus that had been used to estab-lish both peace and a legitimate democracy. Acommission of inquiry allowed these countriesto move toward accountability in a slow butdeliberate way. In some cases, a bargain wasstruck under which the truth about past mis-conduct was divulged in exchange for a par-don, on the premise that establishing a recordof historical truth was more important todemocracy than punishing individual malefac-tors. In other cases, however, the commission’sfact-finding process gradually built a publicconsensus that prosecutorial action was need-ed. In Peru and Chile, prosecutions occurredeven after comprehensive pardons had beengranted, as the courts relied on international-law concepts to disregard those pardons.

These commissions have not always per-formed as their authors intended them to. Forinstance, it was anticipated that the SouthAfrican commission would widely disseminatepardons in exchange for more detailed ac-counts of homicides and abuse under apartheid.In the end, however, very few such pardonswere even sought, since many witnesses simplycounted on a sentiment of general amnesty tosee them through. Such commissions also shiftthe balance of historical memory, which usual-ly favors those who hold power, by ensuringthat the accounts of victims are carefully

recorded. Often this occurs by taking the vic-tim’s testimony in a public setting. In Argenti-na, Chile, and South Africa, the commissionprocess served one function especially well: thepublic was educated about the wretched prac-tices of the prior regime, and demands for aclear separation from these practices—oftenincluding the rehabilitation of victims and thepunishment of perpetrators—changed thelandscape of public opinion.

iv. a two-part solution

Given the political situation in the UnitedStates, it seems clear that the last option is thebest. Although “truth and reconciliation” maystrike many people as somehow too exotic aprocess for the United States, investigativecommissions in fact have a long history herethat includes the Warren Commission, whichwas established in 1963 to investigate the as-sassination of John Kennedy, and the KernerCommission, which was established in 1967 toexamine the causes of race riots in the UnitedStates. Such investigations have had a mixedrecord of success, but they are the best meansavailable to the U.S. political system for inves-tigating issues that raise broad public concernbut cannot be satisfactorily delved into by suchestablished bodies as the FBI or a congressionaloversight committee.

Investigative commissions can provide truth.They can establish an important record. Theycan reaffirm important taboos. But they cannotprovide justice. For that they are simply a firststep. The second step, which I will discuss onlybriefly, is a formal prosecution, most likely byan executive-appointed special prosecutor. Inthis model—call it “commission plus specialprosecutor”—the commission would find thefacts, weigh them, and, if the facts warrant,make a formal recommendation for the ap-pointment of a prosecutor, identifying the mat-ters that necessitate further investigation. Evenif the commission were to determine that noprosecutable crimes had occurred—and, giventhe legal complexities of such an undertaking,such a finding is possible—it would performthe absolutely necessary function of educat-ing the public. If, on the other hand, thecommission were to determine that criminalinvestigation was appropriate, it alreadywould have created essential public supportfor such action.

From what source would the commission drawits authority? The most obvious place would bethe executive branch itself. The next presidentcould appoint a commission of inquiry with thestroke of a pen, and such a commission wouldhave many strengths. It could be created quick-



ly; it would answer to one master; and, sinceit would be created with the authority of thepresident, it could demand the cooperation ofgovernment actors and access to classified doc-uments. Gerald Ford, for instance, created theRockefeller Commission in 1975 toexamine allegations of domestic spy-ing, and it put on record a series oftawdry CIA operations and helped toimpose several congressional restraintson domestic action by the agency. Theproblem with presidential commis-sions is that they can easily be accusedof covering up for previous adminis-trations7 or, conversely, of seeking“victor’s justice.”8

The alternative is a hybrid—an executive-legislative commission thatwould be created by an act of Con-gress but would draw also on the au-thority of the president. This alterna-tive typically involves an elaborateprocess for the appointment of com-missioners by both the White Houseand the congressional leadership. TheNational Commission on Terrorist At-tacks Upon the United States, usual-ly called the 9/11 Commission, is themost recent example of this approach.The hybrid commission can be chal-lenged on constitutional grounds as

an intrusion on executive prerogative, so itssuccess still requires the president’s support andcooperation.9 In general, the presidential com-mission seems a smoother, less legally prob-lematic model, whereas the hybrid commission

is cumbersome but more likely to commandbroad public support and confidence fromthe outset.

In either model, the commissioners them-selves must have the right measure of integrityand commitment. Are they willing to pursue

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7 Or even their own administrations: GeorgeW. Bush formed the Robb-Silberman Com-mission in 2004 to look into why his adminis-tration’s conclusions about Iraqi WMDs wereso completely wrong, but the commission some-how failed to discover the pressure that the ad-ministration itself had brought to bear on in-telligence analysts to cook their conclusions—inpart, perhaps, because Dick Cheney was per-sonally responsible for putting part of the com-mission together, starting with the appointmentof his friend Laurence Silberman as co-chair.The Tower Commission, created by RonaldReagan to look into the Iran-Contra scandal,was a similarly lukewarm exercise in damagecontrol, in which the authors ultimately concluded that allthat was really needed to avoid future such scandals wasa modest restructuring of the role of the national securi-ty adviser.8 This may explain why, when Will Bunch of thePhiladelphia Daily News asked Barack Obama in Au-gust “whether an Obama administration would seek toprosecute officials of a former Bush Administration,”the senator’s response was guarded. “I can’t prejudgethat, because we don’t have access to all the materialright now. I think that you are right: if crimes have beencommitted, they should be investigated. You’re also rightthat I would not want my first term consumed by whatwas perceived on the part of Republicans as a partisanwitch hunt, because I think we’ve got too many prob-lems we’ve got to solve.” Obama adviser Cass Sunsteinhas similarly warned that pursuing prosecutions of BushAdministration officials would generate a “cycle” ofpartisan recriminations.

9 The leaders of the 9/11 Commission were, in fact, point-ed in their criticism of the false or misleading statements thatwere provided by some agencies, particularly the Depart-ment of Defense and the Federal Aviation Administra-tion. In their book, Without Precedent, the commission’sco-chairs, Thomas Kean and Lee Hamilton, write thatthey openly considered recommending prosecution of somegovernment officials for criminal obstruction, a threat thatultimately secured some compliance. They remained skep-tical, however, about how much cooperation they ulti-mately received.

Prisoner at Gunpoint, oil on canvas, by David Fox

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their questions to definitive answers, no mat-ter who is embarrassed or injured by the out-come? Do they place the interests of thosewho appointed them ahead of their obligationto investigate the facts? A well-constitutedcommission is neither partisan nor relenting.It publishes the truth and leaves the prosecu-tion to later actors.

v. implementation

Many commissions failed to achieve positiveends because they were poorly designed. Historysuggests that certain structural and legal charac-teristics, combined with a careful definition ofscope, can lead to a successful outcome.

composition

The first action of any administration whoseconduct comes under scrutiny is to claim thatthe process is politically motivated. The firststep in addressing those claims is to separatethe process of initial investigation from theprocess of prosecution, as discussed above.10

But the commission itself also can be struc-tured in such a way as to mitigate partisan con-cerns. This will require real wisdom, however.Simple “balancing” won’t do the job.

The 9/11 Commission, for instance, was craft-ed as a “bipartisan” institution, with co-equalDemocratic and Republican chairs, on thepremise that each would counteract the partisan

proclivities of the other. In theend, though, this balancingserved only to provide politicalammunition to both parties.Any future war-crimes com-mission should therefore avoidopenly partisan commissionersand staff.

The political parties cannotbe ignored—in order to com-mand appropriate levels of sup-port within the Washington political establishment, thecommission will need party-affiliated co-chairs who none-theless are viewed as being consensus-builders—but thebalance of the commissionshould be persons of establishedintegrity whose professionalbackgrounds involve the skillsessential to studying, under-standing, and dealing criticallywith the issues arising from thepractice of torture. A record ofpartisan political engagementshould weigh against a candi-date’s selection. The experience

pool should include prosecutors, intelligence pro-fessionals, retired military leaders, religious lead-ers and ethicists, human-rights advocates, health-care professionals, and diplomats.

Someone will have to choose those people. The9/11 Commission legislation gave that responsi-bility to the secretary of defense, the speaker of theHouse of Representatives, the Senate majorityleader, and the minority leaders in both houses ofCongress. It probably will be difficult to avoid a sim-ilar delegation of authority. But to ensure that thepersons selected are not simply partisan politicalsurrogates, a further layer might be incorporated.A qualifications commission could be appointedfirst, consisting of a dozen members who wouldhave the sole task of preparing a list of pre-approvedcandidates. The appointees would then have to bedrawn from this list. This approach was taken bySouth Africa in its Truth and Reconciliation Com-mission, and it resulted in a final body that com-manded broad public respect. Indeed, observersof the South African process have often cited thetwo-tiered appointments process as a key to thecommission’s overall success.


10 Newsweek columnist Stuart Taylor, long a defenderof the administration’s detainee policies, wrote in Julythat a war-crimes trial would “touch off years of partisanwarfare. The lesson for occupants of the toughest govern-ment jobs—if the next administration could find peoplewilling to fill them—would be that saving innocent lives isless important than covering their posteriors.” Taylor has,however, embraced the idea of a truth commission.

New Soul, ink on paper, by David Fox


powers of the commission

The bulk of the commission’s work would becarried out not by politicians but by a profession-al staff of lawyers, investigators, subject experts, andvarious assistants. The authorizing legislationshould assume a staff roughly equal to that of the9/11 Commission, which totaled nearly eighty.Preference would be given to persons who hadpreviously obtained the necessary security classi-fications, but the new commission should also begiven the power to quickly address security-classification issues. Staff members should be au-thorized not only to hold and deal with the mostsensitive classified documents in a dedicated, se-cured document room but also to declassify or re-quire the declassification of documents, redactedas appropriate, and to publish the results.

It will be essential for the commission to ex-ercise subpoena power; that is, the ability to forcewitnesses to appear and testify before it with thepossibility of civil or criminal penalties if they failto appear or give misleading or false testimony.Without this power it would be very difficult forthe commission to assemble the information itneeds to issue its report. To invest the commis-sion with these powers would be a somewhatcomplex legal matter, but not an insurmount-able one.11

scope of the investigation

The commission’s mandate requires definitionand focus. It must also, however, provide the com-mission with reasonable room to pursue leads thatarise in the course of its investigation. The com-mission’s charge, therefore, should be to examinethe formation and implementation of policy concern-ing the treatment of detainees in operations (includingintelligence operations) undertaken in connection withthe Authorization for Use of Military Force AgainstTerrorists. Tying the subject matter to a specificpiece of legislation will keep the investigation fo-cused on a single controlling authority even as itallows investigators to explore all of the operationsin which that authority was used, whether in Iraq

or Afghanistan, nearby staging areas, or othersites around the world, including Guantánamoand “black sites” yet to be identified.12

Such a mandate would also allow the com-mission to investigate a variety of non-administration actors, including Congress it-self. Republicans have frequently argued thatmany powerful Democrats, including HouseMajority Leader Nancy Pelosi and Intelli-gence Committee Chairman Jay Rockefeller,were fully briefed on the administration’s tor-ture policy and failed to raise objections. DidCongress acquiesce to the administration’schoices? Did it provide legal authority? Re-publicans may be questioning Democratic in-volvement simply in order to discourage con-gressional inquiries. But such questionsnonetheless are completely legitimate.

findings

The commission should conduct its work inpublic to the fullest possible extent. Openhearings will educate the people about the is-sues under inquiry and also help to build aconsensus in resolving those issues. Putting thetestimony of victims and witnesses on therecord will be a crucial element of thatprocess. It will be a first step toward restoringthe dignity and humanity of the victims, and itwill also serve to reveal, authenticate, and pre-serve vital evidence that may be used in laterlegal proceedings.

Documents, particularly the many classifieddocuments that the administration continuesto withhold from Congress and the public,will be at the core of the commission’s work.The president and his advisers, like membersof many regimes engaged in legally question-able actions, have placed great emphasis oncreating a legal groundwork for their actions.The commissioners would examine thesememos, briefs, and other records with the aidof witnesses, but it is essential that the docu-ments themselves also be made permanentlyavailable to journalists, scholars, and lawyers.A full fact-finding process is likely to takedecades. Public scrutiny can lead to the iden-tification of important details that even themost talented investigators may miss on thefirst and second pass.

REPORT 59

11 The White House has forbidden several of its formeremployees—including former chief of staff Joshua Bolton,former counselor Harriet Miers, and former senior advis-er Karl Rove—from testifying before congressional over-sight panels. When a court ordered them to appear, theadministration sought to appeal the ruling in a transpar-ent, and thus far successful, effort to run out the clock.The administration has also withheld documents, citingexotic theories of privilege. In congressional hearings,White House attorney John Yoo simply refused to answerquestions, on the grounds that he had been instructed bythe Justice Department not to answer, even though manyof the questions concerned matters that Yoo had discussedin two books and dozens of other public forums. The dif-ference between Yoo’s public discussion and his testimonywas, of course, that the latter was under oath.

12 The Authorization for Use of Military Force AgainstTerrorists, passed into law shortly after the attacks ofSeptember 11, 2001, is the statute that has provided gen-eral authority for the conduct of military operations inwhat the administration has came to call the “Global Waron Terror.” Since the president’s repeated assumptions ofextralegal powers was predicated in Justice Departmentmemoranda on his commander-in-chief authority, thatmilitary link should help define the time, the space, andthe nature of the conduct that requires investigation.


The commission would also be required to pre-pare an in-depth report. The report should pro-vide a comprehensive narrative, setting out indetail how U.S. torture policy came to be formedand identifying the key actors and the decisionsthey made.

recommendations

The report’s function would be more than his-torical, of course. It must be forward-looking.Should laws be changed, regulations rewritten,new procedures adopted?13 More important, thecommission must look at the conduct of official ac-tors. Were laws and policies faithfully applied orwere they broken? If laws were broken, was therecriminal conduct that merits study by law-

enforcement professionals? This analysis wouldestablish the background for the three most im-portant potential results of a commission: the for-mal recommendation to pardon, the formal rec-ommendation to pursue prosecution, and theformal recommendation to make reparations.

On the matter of reparations, the commis-sion could do a great deal of good. The UnitedStates has already committed itself, under ex-isting international agreements, to makingreparations to victims of torture. Thus far,though, government action on this front hasconsisted primarily of efforts to foreclose recov-ery. Moreover, the U.S. litigation system is ex-tremely costly and may not be an efficientmeans of providing redress in situations wherevictims are non-citizens and located outside ofthe United States. A commission might recom-mend such alternative approaches as creating aclaims-settlement commission or granting spe-cial authority for ex gratia payments underwhich the United States could offer compensa-tion without being seen as acknowledgingwrongdoing. In cases in which a victim is con-victed of criminal wrongdoing, the fact that hesuffered torture may be considered in connec-tion with sentencing, and some guidelines forthis should be furnished.

The recommendations to prosecute or pardonwould not be binding in any formal sense. Onlythe president has the constitutional authority topardon at the federal level, and any indictmentultimately would have to find its way to prosecu-tors and the courts. The recommendations,then, would be persuasive only to the extentthat the commissioners successfully made thecase for them. (Many of the 9/11 Commissionrecommendations, for instance, have yet to beenacted.) Still, the commission would certainlybe staffed with some career prosecutors. Itshould be in a solid position to assess whether aspecial prosecutor should be appointed. Andthat prosecutor would have a great deal of evi-dence and political momentum at his or her dis-posal. If the process is pursued faithfully, the

recommendations should have con-siderable political influence.

The hallmark of the Bush Administrationhas been its tendency to rush to judgment, cer-tain of propositions that turned out to be deadwrong. In addressing its errors, such failingscannot be repeated. The commission shouldproceed with care and take the time it needs todevelop a full record. The process is likely toconsume at least two years and possibly muchlonger. This is not necessarily a liability. Rightnow, the administration looms large and justiceseems distant. That perspective will change sig-nificantly with the passage of time. ■


13 One highly controversial area of inquiry will be thequestion of efficacy. The major argument for torturenow is simple: It works, and therefore any state thatwants to protect itself would be foolish to dispense withit. But does torture “work”? Many human-rights ac-tivists have strongly discouraged even asking the ques-tion. Doing so, they argue, transforms a moralargument—a basic respect for the dignity of all humansforbids torture—into a utilitarian argument. Such aconsideration of ends versus means opens the door toall kinds of “what if” scenarios that would eventuallylead to wider social acceptance of torture. (One way tomore easily assess that concern would be to substituteanother taboo act—say, child rape—for torture.Would it be acceptable to rape a child if there were aticking time bomb under the Empire State Building andyou sincerely believed that raping that child was theonly way to find it?)

There is much to be said for these concerns. And yetthose who are against torture also have the better end ofthe utilitarian argument. Under centuries of the lextalionis, or law of retribution, if a nation inflicted in-dignities on its captives, others were free to do the sameto its soldiers. One of the clearest consequences of theBush torture policies has been to put American servicepersonnel at risk. Nor is there any evidence that tortureis an effective means to the end of national security.Bush has argued that “the program” he helped establishdid in fact secure information that “saved Americanlives.” But others who have looked into the incidentsthat Bush cites say that, in fact, what useful intelli-gence was gathered in these interrogations was gatheredbefore the interrogators resorted to torture. Indeed, thetechniques utilized at Guantánamo and Abu Ghraibwere developed not for the purpose of gathering intelli-gence but rather to elicit false confessions to be used forpolitical purposes.

This invites a number of questions: Was the intelli-gence collected inherently more or less reliable than intelli-gence gathered using other techniques? Was it necessaryto turn to highly coercive tactics to secure this informa-tion? What other consequences for national security flowfrom the use of the new techniques in terms, for instance,of loss of intelligence-gathering channels, damage to repu-tation, recruitment gains for enemies, and compromisedcooperation from allies? These questions, although theymay suggest, perniciously, that “reasonable minds differ”on torture, nonetheless are worth asking for one reasonabove all. The answers, coming from administration offi-cials, would also act as a kind of confession. Their self-justification should be part of the record.


justice after bush: prosecuting an outlaw administration

Documents

y o n t h e f i n

r e p o r tjustice

michel houellebecqj

george w

presidents commit crimes

acknowledgesuch crimes

wartime exception

waged war