Does the US Need a Truth and Reconciliation Commission? (Answer: No.)

As frustration with the Bush administration’s War on Transparency continues to mount, scholars and pundits are beginning to suggest that the U.S. should think about creating a South African-style Truth and Reconciliation Commission to investigate the administration’s many crimes.  Nicholas Kristof is one example. Richard Clarke is another.  And a third is Katherine Tiedemann, writing in The American Strategist:

The South African Truth and Reconciliation Commission is generally held up as the model for such bodies, which don’t have formal judicial power but instead serve primarily as instruments for the discovery of past wrongdoings by governments.

So far, when each instance of misconduct has been revealed — from the destruction of CIA interrogation tapes and waterboarding to extraordinary renditions and habeas-corpus-free detention of prisoners at Guantanamo — individual solutions have been sought and some individual actors have been put forth to be held accountable. But this approach is piecemeal at best and does not get at the connective tissue and the systematization of abuses.

A truth commission, however, would provide a more holistic approach to the violations that have been committed or ordered by individuals and agencies within the government. A commission would serve as an opportunity to look back and expose where the administration started to go wrong in its decision-making process; allow those whose rights have been violated to be heard; and give Americans on the whole a chance to cleanse our national conscience–and our image abroad.

Though I am certainly sympathetic to Tiedemann’s goals, her suggestion both misunderstands the nature of South Africa’s TRC and vastly overstates the potential for an American TRC to deliver either truth or reconciliation.

To begin with, although it is true that South Africa’s TRC is generally viewed “as the model for such bodies,” it is important to put its accomplishments into perspective.  To be sure, South Africa’s TRC was able to document many of the gross violations of human rights that were committed during the apartheid era — murders, torture, disappearances, kidnappings, etc.  The vast majority of that information, however, came from the victims of apartheid, not its perpetrators. (More than 21,000 victims gave testimony.)  Indeed, as Naomi Roht-Arriaza has pointed out, “almost no high-ranking officials of the apartheid government came forward to ask for amnesty.”

The report card is also mixed in terms of reconciliation.  There is no question that  South Africa’s TRC played a critical role in bringing about political reconciliation between the ANC and the National Party: the promise of amnesty for crimes committed for political purposes was the National Party’s sine qua non for agreeing to an interim constitution.  There is little evidence, however, that the TRC’s actual investigations led to social reconciliation.  On the contrary, most South Africans wanted those who committed crimes in defense of apartheid to be criminally prosecuted and civilly sued, not granted amnesty and “forgivneness.”  (Amnesty not only barred criminal prosecution, it also extinguished the victim’s constitutional right to bring a civil suit against both the perpetrator and the government.)  Little wonder, then, that South Africans generally viewed the TRC as “weak, ineffectual and as a sell-out” and that nearly 2/3 of them believed (as of 1998) that the TRC actually made race-relations between the races worse.

Unfortunately, there is no reason to believe that an American truth and reconciliation commission would fare any better.  As Tiedemann acknowledges, a TRC works only if the perpetrators of the crimes it investigates have an incentive to testify — namely, the fear of prosecution. Why trade truth for amnesty if the failure to make the trade has no consequences?  That was the problem in South Africa: the government officials and law-enforcement officers who perpetuated apartheid never believed that they would be prosecuted if they failed to satisfy the requirements for amnesty or simply ignored the TRC process.  And they were right: the number of perpetrators who were prosecuted after either being denied amnesty (more than 5,000) or refusing to cooperate with the TRC can be counted on two hands.

Do the officials responsible for the Bush administration’s torture and extraordinary renditions and warrantless wiretapping (to name only a few of its many crimes) face a more credible threat of prosecution?  It’s difficult to see how.  Take, for example, warrantless wiretapping.  A more clear-cut case for criminal prosecution is nearly impossible to imagine; after all, the Bush administration freely admits that it knowingly and intentionally violated FISA, a felony offense.  And how does the Democratic-controlled Congress respond?  By passing a bill that retroactively immunizes the telecommunications companies that made the warrantless wiretapping possible — effectively guaranteeing that the evidence necessary to prosecute the government officials involved in the NSA program will never see the light of day.

And how about the many war crimes committed at Guantanamo Bay — torture, cruel and inhumane treatment, degrading and humiliating treatment, the denial of fair trials, etc.?  Congress’s response — enacting the Military Commissions Act — tells us all we need to know about whether those crimes will ever be prosecuted:

Notably, the legislation narrows the scope of the War Crimes Act, decriminalizing certain past acts. Previously, the War Crimes Act criminalized all violations of Common Article 3 of the Geneva Conventions, as well as grave breaches of the Geneva Conventions. Anyone responsible for any Common Article 3 violation, including the cruel, humiliating or degrading treatment of detainees, could be prosecuted under the law.

The MCA revises this portion of the War Crimes Act, replacing the blanket criminalization of Common Article 3 violations with a list of “grave breaches” of Common Article 3, which are specified and defined in the legislation. And the law is amended retroactively to November 26, 1997, meaning that perpetrators of several categories of what were war crimes at the time they were committed, can no longer be punished under U.S. law.

Now, under the MCA, torture and cruel and inhuman treatment qualify as “grave breaches,” but degrading or humiliating treatment does not. The MCA also eliminates as a war crime the passing of sentences by a court that does not meet international fair trial standards.

Those who support creating an American TRC are, of course, more interested in learning the truth about the Bush administration’s crimes than in prosecuting the individuals responsible for them.  That’s why they believe a TRC is a desirable alternative to criminal prosecutions.  Tiedemann again:

This really cannot be done by journalists alone. Jane Mayer commented that she has “subpoena envy” as a reporter and often has to beg for documents; a truth commission would bypass this poverty of access because it would have the power to subpoena relevant individuals and organizations for their testimonies and records.

This argument overlooks a critical point: Congress already has the power to “subpoena relevant individuals and their organizations.” The problem is that, whenever it uses its subpoena power, the Bush administration simply invokes “executive privilege” and refuses to comply — even when the assertion of the privilege is patently ridiculous, such as Mukasey’s recent invocation (invention?) of the “law-enforcement component of executive privilege” to avoid turning over documents detailing Dick Cheney’s role in the outing of Valerie Plame.

Why would subpoenas issued by a TRC be any more successful?  South Africa’s TRC at least enjoyed quasi-constitutional status, given that the principles underlying its enabling act (the Promotion of National Unity and Preservation Act 1995) were enshrined in the 1996 Constitution.  An American TRC would presumably be created by Congress — and would thus be no less subject to claims of executive privilege, whether by the Bush administration or by a subsequent McCain administration, than Congress itself.

It is more likely, of course, that Barack Obama will be our next President.  That likelihood, however, actually counsels against creating a TRC.  An Obama administration is unlikely to invoke executive privilege to conceal the Bush administration’s wrongdoing — which means that either Congress or a TRC could make effective use its subpoena power.  So why take criminal prosecution off the table forever by offering amnesty in exchange for testimony?  Why not simply follow the strategy prosecutors have been using for decades, identifying the small fish and then using the promise of leniency to obtain their testimony against the big fish?

There is also no reason to believe that an American TRC would lead to reconciliation. TRCs provide a plausible alternative to prosecution when victims and victimizers have to learn to live together, because they share a common home and national heritage; in such situations, criminal prosecutions may satisfy victims’ understandable desire for justice (and revenge), but they may also exacerbate racial, ethnic, and political tensions. By and large, however, the individuals most terrorized by the Bush administration are Muslim men who are not American citizens and do not live in the U.S.  They certainly deserve an official apology for their mistreatment — tortured, rendered, detained for years without trial, subjected to kangaroo CSRTs — but it is difficult to imagine Dick Cheney or David Addington doing the apologizing, much less in a public forum with the cameras rolling.

That said, it would be useful to hear the detainees tell their stories — stories that have yet to be told in full, because of the fetishistic secrecy that pervades every aspect of life at Guantanamo.  Yet, again, Congress could hear those stories if it wanted to, no matter who is elected president in November.  And it would not have to trade amnesty for the privilege.

And that, of course, is the bottom line.  The U.S. does not need a truth and reconciliation commission.  What it needs is a Congress that is genuinely committed to investigating the Bush administration’s systematic criminality.  Preventing indefensible assertions of executive privilege; curbing the overbroad use of the state secrets privilege; enforcing subpoenas and contempt citations; providing whistleblowers with genuine protection — these steps, all within Congress’s power, would lead to far more truth and reconciliation than any TRC ever could.