Newsweek reports that Obama advisers are considering the possibility of a 9/11-style investigatory commission that would ask what has gone wrong (and right) with our counterterrorism policies and make public its findings. According to a senior adviser, “the American people have to be able to see and judge what happened.”
An independent investigatory commission on our post-9/11 counterterrorism practices is crucial to defend our commitment to the rule of law. To be sure, previous administrations exercised far-reaching powers and engaged in abusive conduct in times of crisis. (Geoffrey Stone’s Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism does a superb job capturing these past excesses). But the current administration’s power grab was both unprecedented and deeply damaging. According to former Chief Counsel to the Church Committee and current Senior Counsel to the Brennan Center on Justice Frederick A.O. Schwarz, Jr., the Bush Administration gave itself extraordinary “powers of coercion, detention, and surveillance” that produced a separation-of-powers imbalance, eviscerated our rights and liberties, and perverted American values. Understanding this history is crucial to prevent its repetition.
As Schwarz urges, any investigatory commission should be “independent, bi-partisan in membership and non-partisan in approach.” It should have available to it investigative tools such as the power of subpoena to conduct a thorough investigation, including access to all relevant information held by agencies, the White House, and private contractors. And the proposed commission needs access to secrets. For instance, it must have free reign to order U.S. intelligence agencies to open their files for review and question senior officials who approved waterboarding and other controversial practices. Such a commission would surely help us prevent future abuses of power. But our transparency about past mistakes would also enhance confidence in our democracy, both here and abroad.