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Time for a non-partisan commission to investigate the treatment of detainees

Felton Newell, left, with yours truly in Santa Monica in March 2009

Felton Newell, left, with yours truly in Santa Monica in March 2009

Felton Newell, Deputy City Attorney in Los Angeles and candidate for California’s 33rd Congressional District, had an excellent piece over at the Huffington Post urging Congress to investigate Bush Administration policy and practice regarding detainee treatment. Newell, an experienced prosecutor, writes:

Some have said that the Justice Department should investigate to determine if any laws were broken and prosecute any law-breakers to the full extent of the law. However, the threat of prosecution likely will lead to stonewalling on the part of Administration officials for fear of self-incrimination. We saw this in the prosecution of L. Scooter Libby for his involvement in the Valerie Plame affair. Libby never testified in that case and our understanding of what the President and Vice President knew about the effort to discredit Ambassador Joe Wilson and when they knew it remains incomplete. Accordingly, witnesses at the hearings should be granted immunity from prosecution so that the members of Congress conducting the investigation will be able to get answers to the important outstanding questions.

As a criminal prosecutor, I appreciate the important role prosecution plays in achieving justice. However, in this instance, truth is more important than retribution and punishment. The individuals who committed these acts will have to live with the shame of their actions and the government leaders who authorized these acts will suffer the harsh judgment of history.

It is imperative that Congress immediately launch an investigation into the torture practices the Bush Administration undertook on our behalf. We need to have an exhaustive understanding of how our nation’s military and intelligence communities created the apparatus of torture to ensure that torture never again takes place in our name.

Newell makes much sense. I think it is critical that a thorough investigation take place with a view toward enacting the appropriate legislation to ensure that the abuses of the past Administration do not repeat themselves.

But who should conduct the investigation?

There are a variety of options. One option if for Congress to take the lead. The Senate or the House could empower the existing intelligence committees to investigate. Or, like the Church and Pike Committees, which investigated abuses of the intelligence community in the 1970′s, either House of Congress could establish a select committee for this specific investigation. Or Congress could create a joint select committee.

But another option would be to establish a non-partisan commission to investigate. This commission would consist of noted jurists, former government officials, and generally “wise people”– names like Sandra Day O’Connor, Howard Baker, and George Mitchell come to mind.

The commission, in my view, should be non-partisan, not bi-partisan. Rather than trying to construct a commission with equal number of Democrats and Republicans– who would represent their parties’ interests. Why not simply seek the best persons, who would not see their loyalty as primarily to a party? I have the impression that one of the problems of the 9/11 Commission was that some of the members may have put too much value in their party affiliations. Undoubtedly, an effort would be made to ensure that there were members of both parties, but that would not be the primary criterion for membership. Because of this, I think the commission would be less susceptibleĀ  than Congress to being paralyzed by partisan bickering.

The commission would have full access to classified material and would have subpoena power. The task of the commission would be several fold:

  • To establish as full and complete a record as possible of the treatment of detainees in the period following September 11, 2001 up to the present.
  • To offer conclusions about the legality of U.S. actions during this period– both with respect to U.S. domestic law and international law.
  • To make recommendations for domestic legislation to prevent future violations of the law and the ensure proper treatment of detainees.
  • To make recommendations for new international legal instruments to fill any lacunae in existing international law regarding the status and treatment of detainees. The Geneva Conventions, for example, need to be updated in light of new, non-state actors.

I think such a commission– properly consituted– would be an excellent way to get at the facts of the past eight years and make recommendations for moving beyond them. And I think that President Obama and Congress should act now to establish such a commission. The press– and I believe the public– are pushing for some action so that we can truly put the horrible past behind us.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.