POLITICS APRIL 27, 2009
Recent reports suggest that President Obama received, but rejected, advice from senior advisors to establish a 9/11-style commission to investigate interrogation techniques used during the Bush administration. After some apparent indecision earlier last week, the president reaffirmed his opposition, as did Senate Majority Leader Harry Reid. Nonetheless, to ward off prosecutions of Bush administration officials, which would produce an uncontrollable political conflagration, he may eventually have to relent. It is not too early to think about the shape that a commission of inquiry should take.
In constituting such a commission, the administration and Congress will have to consider and resolve four key questions:
--How can the commission be constituted to minimize the odds that its proceedings will become mired in partisan wrangling?
--How broad should the commission’s mandate be?
--What balance should be struck between open and closed deliberations?
--Should the possibility of subsequent prosecution be taken off the table?
For what it’s worth, my suggestions are as follows:
--The membership should not only be balanced along partisan lines, but should also reflect the full range of institutional perspectives--military, intelligence, legal, and judicial, among others--that are required for an adequate assessment of this issue. The co-chairs should be chosen to mirror the relationship Tom Kean and Lee Hamilton developed on the 9/11 Commission. And this commission should be empowered to select a staff of unimpeachable ability and integrity.
--The mandate should be broad. The commission should investigate what was authorized and done--as well as what results the controversial interrogation techniques produced and whether the same results could have been obtained in other ways. (I will return to the issue of whether the results of these techniques, whatever they may be, are germane to our ultimate judgment of their acceptability.)
--Despite the administration’s commitment to transparency and the obvious importance of restoring public trust, there is a case for closing at least some of the hearings, both to protect sensitive materials and to reduce incentives for political grandstanding.
--I will leave it to others to determine whether the authors of the “torture memos” and/or those who relied on them could be appropriately prosecuted with a reasonable chance of success. My own view is that everyone involved should be granted immunity from prosecution--and then be required to testify fully and under oath. No doubt this approach would leave many people dissatisfied; the desire to punish wrongdoers and reaffirm the rule of law is understandable. Nonetheless, getting to the fullest possible understanding is more important. The path of prosecution would put the legal fate of a handful of individuals ahead of the broader national interest in finding out exactly what happened and in preventing what cannot be justified from recurring.
More broadly, “turning the page and moving forward” on the torture issue simply reflects a too narrow view of moral and political life. We cannot hope to learn from experience unless we reflect on it as systematically as we can. But more than that: part of what makes us human is a sense of justice, and justice has to be backward-looking to some extent. We cannot make sound judgments about what individuals (or nations) deserve unless we reflect on what they have done. By contrast, looking forward involves deliberation on expected results and invites a kind of utilitarian calculus of costs and benefits. President Obama has demonstrated his capacity to engage in such a calculus, coolly and deliberately. But while he has rightly cautioned against governing in anger, he has yet to show that he viscerally understands anger, which is a core moral and political passion, one that can be used for productive purposes.
I return, finally, to the underlying issue: Are the results of “enhanced interrogation techniques” relevant to the judgment of their acceptability? Those who answer this question in the affirmative commit themselves to some version of the proposition that the end justifies the means. Those who commit themselves to the negative commit themselves to the proposition that there are some things we can’t do--ever--even if doing them in extreme circumstances would prevent grave harm to our citizens and institutions. (In his essay “Politics as a Vocation,” Max Weber formulated this as the choice between an ethic of responsibility and an ethic of intention.)
Some people are attracted to what they regard as a middle ground--namely, that in extraordinary circumstances we should permit deviations from norms that govern ordinary situations, but without transforming these deviations into a formal program, explicitly endorsed. While it is possible that prudence may dictate such a course, it does not succeed in evading the underlying choice. To acknowledge the propriety of otherwise forbidden means in extreme situations is to accept the proposition that consequences matter.
John Locke’s Second Treatise of Government helped shape the intellectual climate from which our constitutional order emerged. It is worth remembering that it begins with the maxim Salus populi suprema lex esto--the welfare of the people is the highest law. Circumstances now compel us to ask: Do we endorse Locke’s proposition, and if so, are we prepared to accept the consequences?
William Galston is a former policy advisor to Bill Clinton and current senior fellow at the Brookings Institution.