Tuesday, February 10, 2009

Leahy wants a post-Bush era Truth commission

Patrick Leahy is exploring the possibility of a Truth Commission

By Jason Leopold

As Democratic leaders struggle over what to do about the Bush administration’s past abuses, Senate Judiciary Committee Chairman Patrick Leahy joined those advocating a “truth and reconciliation commission” that would seek facts, not jail time.

“We could develop and authorize a person or group of people universally recognized as fair minded, and without axes to grind,” Leahy said during a speech at Georgetown University’s Law Center on Monday. “Their straightforward mission would be to find the truth” about controversies such as torture of detainees and warrantless wiretaps.

“People would be invited to come forward and share their knowledge and experiences, not for purposes of constructing criminal indictments, but to assemble the facts. If needed, such a process could involve subpoena powers, and even the authority to obtain immunity from prosecutions in order to get to the whole truth,” the Vermont Democrat said.

In a nutshell, I don't think this is the right time for a Truth Commission. We are not in a classic transitional justice situation where the nation can't move forward without airing the past. We are also not in a situation where our justice system would be overwhelmed by the volume of potential prosecutions of actors from the 'old regime.'

A truth commission is a means for achieving transitional justice. In achieving this goal, there is a heavy emphasis in truth commissions on creating a collective memorial of past atrocities. Beyond that there is little agreement about its purpose or meaning. Priscilla Hayner has observed the following common criteria of Truth Commissions: 1) a focus on the past, 2) an attempt to paint an overall picture of human rights violations over a period of time rather than focusing on a specific event, 3) temporary existence which ends with a report of findings, 4) a specific scope of authority, vested by the authorizing government enabling it to conduct the full and thorough review with which it is charged.[1] Others add to this criteria the following requirements:[2] 1) domestic support, a willingness of the citizens to go through the process of hearing testimony from victims and perpetrators and to engage on the terms defined by the commission, 2) sufficient funding to support the commissioners, pay for hearing costs, travel, stenographers, security, and administrative costs, 3) strong political leaders actively encouraging participation and compliance at all levels of government and society,[3] 4) power for the commission to proceed under ICC (or at least International Public Law rules), 5) proportionality, an actual need to uncover the Truth (despite the immense emotional upheaval it creates) against a high potential for revisionist history.

However wide the scope of truth commissions, there are a few things they do not do. They do not put perpetrators on trial. There are few procedural rights, rules of evidence, verdicts or sentences in truth commissions. They are not on-going. The work of the commission begins on one date and ends on another, often arbitrary, date. Sometimes the commission's work will be extended, but the structure of a truth commission, gathering testimonial evidence about a set period in national history then issuing a report means the work will end at some point and the commission will cease to exist. There is also no set method for conducting a truth commission—even now that there is a considerable body of commission history to draw from—or for deciding when to have one.

Furthermore, as Teresa Godwin Phelps writes in, Shattered Voices, her survey of past commissions, this type of justice forum is most useful in fulfilling the revenge instinct of a group of formerly oppressed people by allowing them (or actually a few of their representatives) to tell their stories. In the United States, we have widely available, uncensored communications tools and social organizing mechanisms for getting out peoples’ stories, including a free press renaissance on the Internet. Thus the need for vindicating victims of the Bush administration is somewhat pale in comparison to victims in, say, Argentina, former Yugoslavia, or South Africa. Now, something akin to a TC may be necessary in the international arena concerning Gitmo, but that must be the in perview of the UN or another nation to have any credibility…and seems beyond what Leahy proposes anyway.

[1] Priscilla B. Hayner, Fifteen Truth Commissions–1974 to 1994: A Comparative Study, 16 Hum. Rts Quarterly 597, 604 (1994).

[2] Erin Daly, Transformative Justice, 12 Int'l Legal Persp. 73, 96–98 (2002) (discussing "features of transformative institutions").

[3] David Dyzenhaus, Truth, Reconciliation and the Apartheid Legal Order 4 (Cape Town : Juta & Co., 1998). Daly has also suggested that Truth commissions only work where aligned with cultural needs.

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