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A Body of Inquiries—A Commentary by Jack M. Balkin

The following commentary was published in The New York Times on January 11, 2009.

A Body of Inquiries
By Jack M. Balkin

IN the past eight years, our government has tortured people and spied on its own citizens. Administration lawyers created a series of secret laws to justify these activities. The Justice Department has been riddled with scandals alleging corruption, illegality and incompetence. What should the next administration do about these practices? Do we punish wrongdoing or discover the truth?

We should opt for the truth, for three reasons. First, we must restore America’s commitment to human rights by exposing and condemning our own abuses. Second, we must counteract the tendency toward secret laws that facilitate these violations. Third, we must create a public record of government misconduct as a lesson to future generations and a caution to future administrations.

Criminal prosecutions might serve these functions, but they face enormous obstacles. The administration repeatedly, systematically twisted the law to immunize its criminal conduct, and much of what was done was authorized by executive branch lawyers, particularly in the Justice Department’s Office of Legal Counsel. However mistaken this advice, relying on it provides government officials a strong defense. Moreover, at the Bush administration’s urging, Congress has given potential defendants legal immunity through the Military Commissions Act of 2006 and other statutes. (And, for now, President Bush still retains the pardon power.)

Of course, criminal prosecutions make sense where lawbreaking was not immunized or approved by Congress or the Justice Department, but in the most serious cases — torture and surveillance — prosecutions may be least effective.

Seeking the truth is the better option. One model is South Africa’s Truth and Reconciliation Commission, led by Archbishop Desmond Tutu. The South African experience, however, is very different from ours. The apartheid regime had directed violence at its own people; its opponents sometimes used violence in return. The new South African government sought not only to preserve a historical record but also to reconcile and rehabilitate former enemies and unite the country’s diverse populations.

In the United States, torture and inhumane treatment was largely directed at non-citizens, many held outside the country, at Guantánamo Bay or in secret locations. We are not trying to coax former adversaries together to build a new nation; rather, we need to renew our commitment to human rights and the rule of law and prevent future abuses. Our aim is not truth and reconciliation; it is truth and repudiation.

Instead of the South African model, we should use a two-pronged approach.

First, a central cause of human rights violations was the proliferation of secret laws that immunized government conduct, avoided accountability and corroded the foundations of our democracy. The incoming administration should begin by releasing the Justice Department and Office of Legal Counsel memos that justified the surveillance, detention and interrogation practices at issue, and require appropriate and regular disclosure of future opinions.

Our new president must also reform the Justice Department, which has lost its ability to give independent legal advice. The Bush administration regularly shut out lawyers it believed would tell the White House what it did not want to hear and short-circuited consultative procedures intended to produce both wise and lawful policies.

Second, both the new administration and Congress should create presidential commissions and Congressional oversight hearings on various subjects: detention and interrogation practices, extraordinary rendition, reform of military commissions and reform of surveillance practices. These different commissions have different objects and functions; a single truth commission could not begin to address them all.

Congress and the president should divide up subjects efficiently to prevent conflicting jurisdictions and turf battles. And both branches should signal the importance of these hearings to the public, giving them the gravity and attention they deserve.

The South African model offered witnesses potential amnesty (which was not always given) to coax testimony (which did not always occur). American commissions and hearings should have the power to bestow immunity to compel testimony, either “use” immunity (the testimony cannot be used in any future prosecution) or “transactional” immunity (no prosecution for acts connected to the subject of the testimony). Sensitive evidence that affects national security could be taken in closed proceedings and summarized or published in redacted form.

The goal of these specialized commissions and hearings will not be merely retrospective. They will also be prospective, aimed at specific government reforms. The next administration will still have to detain and try people, and it will still have to gather intelligence. The Military Commissions Act of 2006, which set up rules for terrorism trials, requires a significant overhaul, and Congress should hold hearings on how the incoming president plans to use the vast surveillance powers given him by the FISA Amendments Act of 2008.

Above all, the new president and Congress must work together. If Barack Obama does not cooperate with Congress and help make present and former officials available for testimony, these hearings will not succeed. Once out of office, President Bush will likely invoke executive privilege to prevent members of his administration from testifying, but that privilege is not absolute; it should also depend on the current president’s determination of the national interest. Mr. Obama must use the powers of his office to uncover past wrongdoing and to make sure that past misdeeds do not occur again.

We do not need a one-size-fits-all truth commission. But we do need the truth. Our democracy depends on it.

Jack M. Balkin is a professor at Yale Law School.