Rabkin Debates "Truth Commission" in LA Times

Professor Jeremy Rabkin debates the pros and cons of a Bush "truth commission" in an op-ed in the Los Angeles Times, taking a position against such a commission, while Frederick A.O. Schwarz Jr., chief counsel at the Brennan Center for Justice at the New York University School of Law, presents an opposing view.

The questions posed by the newspaper are: What are the pros and cons of having a commission investigate an administration that may have broken the law? What kind of precendent would such an inquiry into actions taken by the Bush White House set for future administrations and their intelligence agencies?

Rabkin cites concerns about true bipartisanship and rejects the need for a truth commission based on three concerns: who will likely serve on the commission, who will interpret the commission's findings, and who will interpret its findings for "a distracted American media."

"The most we can hope is that this truth commission only inhibits and intimidates U.S. security officials a little bit more," says Rabkin, citing government release of Guantanamo Bay detainees back into terrorist activities in response to pressure from critics to underline his concern.

A Bush 'truth commission': the pros and cons, Los Angeles Times, March 12, 2009. Point by Jeremy A. Rabkin; counterpoint by Frederick A. O. Schwarz Jr.

"This truth commission seems to appeal, for the most part, to people who wish we could have prosecutions but realize we won't. It would be very hard to persuade an American jury to convict Rumsfeld for doing what he thought proper to defend the United States. But stirring up a lot of smoke and noise with a commission report, that's much easier.

"And I think that's the main motive here: to vindicate the most hysterical critics of the administration who are absolutely convinced that someone, somewhere must have committed a crime, because Bush was evil or a fool or anyway under the thumb of Halliburton and Dick Cheney.

"Consider, in the next place, who would serve on this commission. Sen. Patrick J. Leahy (D-Vt.) has called for a 'bipartisan commission.' Who's going to decide which Republicans get to serve? The Obama White House? House and Senate leaders? And which Republicans would want to serve? What sort of career incentives would a serious person have to sit on a commission to rake over allegations of abuse against an administration now entirely powerless to punish or reward Republicans serving on this commission?

"Finally, consider how such a commission would probably distort our public debate, even if it operates with more fairness and impartiality than we have any right to expect. Advocates want to investigate 'abuses.' What counts as an 'abuse'? You and Leahy worry about torture of terrorism suspects and rendition of suspects to countries where they may have been subject to torture. OK, but what about releasing suspects from Guantanamo Bay when we shouldn't have? Dozens of released detainees have been found among terror operatives in Afghanistan and Iraq. Last year, one such former detainee drove a truck filled with explosives into an Iraqi army base, killing 13 soldiers and wounding more than 40 others.

"Are we going to review how Bush administration officials allowed that to happen? Is the truth commission going to review the role of critics -- both at home and abroad -- who pressured the administration to release dangerous terrorists when they should have been kept safely locked away?"

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