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

by Kevin Jon Heller

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 Acttells 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.

http://opiniojuris.org/2008/07/21/does-the-us-need-a-truth-and-reconciliation-commission-answer-no/

9 Responses

  1. Response…

    Hear! Hear!

  2. The Truth and Reconciliation Commission that might be created in the United States is not one between those who have been victims and those who have been perpetrators within the United States polity – the typical case in other settings in which such commissions have been put in place such as South Africa, Rwanda, Sierre Leone, Liberia. Rather the reconciliation risks being done between Americans who acquiesced in the actions of the perpetrators of the torture with other Americans who resisted the actions of the torturers – but little or no reconciliation for the foreign victims of the American torture. From the point of view of the person who was tortured, the effect is that we as Americans come to some sense of reconciliation with our selves – without providing accountability about our perpetrators that is meaningful to that foreigner who is the victim of our policy. That is not Truth and Reconciliation in the sense of the traditional national tribunals. Such a Truth and Reconciliation Commission is merely a mechanism to manufacture American immunity in a domestic structure. It would be possible to make such a tribunal an international one as a treaty between states for example, but making it international only dilutes the American role at the center of the torture regime. Ironically, the internationalization may be a further means of immunizing the perpetrators.

    The singular problem – not really seen since Nuremberg – is that the perpetrators of the criminal act are persons of one nationality (garnering allies in the world) who are perpetrating their acts of torture on persons of other nationalities and citizenships in a very physically diverse space. The unity of torture, nation, perpetrator and victim that permit meaningful reconciliation in one geographic space is not available. For these reasons, a Truth and Reconciliation Commission appears to be a sham process whose true aim is neither Truth nor Reconciliation but aimed at creating immunity (either legislative as part of the creation of the structure or through Presidential pardons) in a domestic law setting. In a time of Orwellian use of language, this further improvisation merely becomes a further example of perversion of accountability – brilliant but still perverse.

    Best,
    Ben

  3. I’m a non-lawyer human rights activist and regular Opinio Juris
    reader, and here’s my few cents.

    I agree with Kevin that we don’t need a Truth and Reconciliation Commission, but I agree with Kristof that we need a Truth Commission of some kind.

    Reconciliation is a non-issue. There are no parties to be reconciled, just the agents of a soon-to-be-out-of-power criminal regime and their numerous and varied victims. Moreover, the victims are of a dozen or more nationalities and spread out over six continents. Very few of the surviving victims and loved ones of deceased victims will ever have to share the same social or civic space –or the same space, period– with the perpetrators.

    I think that the creation of an evidence-seeking Truth Commission that can (but will not automatically) precede criminal trials –but certainly does not offer anyone immunity– would be the best option for us in the years ahead.

    This is my stance for a few reasons:

    1) We have obligations, moral and legal, to bring those who committed serious crimes (especially serious human rights abuses) to justice. This point is basically skipped over by a lot of people who just focus on the political impracticality and general unlikelihood of criminal prosecutions.
    2) A Truth Commission of the kind I described earlier would allow us to get a fuller picture of what crimes our leaders committed, against whom, and by what means. It would also help would be future prosecutors prepare for possible future trials, which brings me to my next point:
    3) Even an Obama Administration would be unlikely to prosecute high ranking former administration officials, even if they openly admitted to serious crimes, as some already have. Neither the national mood nor the political reality in Washington will be conducive to prosecutions in 2009. (This is not to say I approve; I don’t think either of those things should be considered, but I know they would be/will.) But what about 2012 (if McCain is elected) or 2016? With that many years between the administration in office and the one that committed the crimes (not to mention the distance between Democratic leaders of the day and their complicit predecessors) there might be more willingness to finish the task of confronting the past –by holding trials.
    4) The tremendous amount of media coverage an American Truth Commission (!) would attract, as opposed to Congressional hearings, would establish some kind of at least semi-coherent national narrative about what happened, or, more precisely, what was done in all our names, between 2001 and 2009.
    5) It’s important to not just move on from the things this administration has done, but to face them head-on, demonstrate that, while the US is not a perfect country, it is not the sum of the actions of the Bush Administration. The best way to demonstrate this, of course, is to compel our criminal former officials to admit what they did, and for current leaders to express how sincerely they will work to see that past abuses are not repeated in the future. Trials and truth commissions anywhere are set up by political elites, but their processes and outcomes have a defining effect on the multitudes.

    Do I think a Truth Commission will be established? I don’t know. I wouldn’t bet on it, but I am absolutely not willing to rule it out. And until someone can propose a better idea, I will continue to see it as our best option for both truth and justice in the years after the Bush Administration leaves office.

    Earlier today, the Serbian Government saw to it that Radovan Karadzic was arrested at long last. Though there are few parallels between Serbia’s tumultuous relationship with justice and the rule of law over the past fifteen years and the United States as it faces the end of its most criminal administration in living memory, there are these: Serbia is a better country today than it was yesterday. It will be viewed more kindly by outsiders, and its political culture will continue to develop in a more positive direction now that it has made this symbolically and practically important break from the past. The same could be said for the US (though, obviously, in very different ways) if enough political will was mustered to hold to account those administration members responsible for the human rights abuses –torture, detainees beaten to death, secret prisons, etc– that have become synonymous with “America” and “Americans.”

    Reflecting on the Chilean Truth Commission, Chilean human rights activist and former commissioner José Zalaquett said two things I think apply universally: “One cannot expect morality from politicians, but one can hold them to the ethics of responsibility,” and “To make a clean break from the past, a moral beacon needs to be established between the past and the future.”

    I am in my very early twenties. The actions of the Bush Administration have already left a devastating legacy for my generation, a legacy that will not be undone even by the impaneling of a Truth Commission.

    But a Truth Commission would be a start, the first hopeful chapter in a grim story for which the ending, if nothing else, is ours –and not theirs— to write.

  4. I think in most human conflicts it is fair to say that there are wrongs on both sides.  However, the general pattern in any kind of truth and reconciliation context, or criminal prosecution like Nuremberg, is that the side that is the “most wrong” — for lack of a better term – finds itself subject to the court, not the other side.
    While many on this board frequently gloss over the crimes committed against the United States and its people during the war on terror, I don’t think history will especially if a more popular administration takes over.  9/11, the attacks on U.S. embassies, the Cole etc. are such overwhelming crimes that I think they negate the possibility of a truth and reconciliation type process.

    Feel free to make any normative argument you want, but I think my empirical point is accurate.  Truch commissions investigate bad acts committed against good people, looking at bad acts againt bad people would be unprecedented.

  5. So all the detainees at Guantanamo who were picked up away from the battlefield by warlords looking for bounties, against whom the US government has no evidence of any wrongdoing at all, are “bad people”?  Really?

  6. Your point is well taken.  If there would be a truth and reconciliation commission, it would most likely be drive by abuses as to people wrongly picked up on the battlefield.

    However, given the US has no incentive to pick up and abuse innocent people, I don’t think you have the systemic problem that would necessiate such an extraordinary remedy.

  7. The NewStream Dream,

    Oh really? At least one hundred people have died in US custody (that we know of so far), we’ve tortured or enabled (through rendition) the torture of at least dozens if not hundreds, we’ve carried out kidnappings and enforced disappearances, and we’ve held thousands in Afghanistan, Iraq, Guantanamo, and elsewhere in conditions that violate international law. We’ve variously deprived detainees of everything from minimally humane prison conditions to anything approaching fair trials. We’re even putting a former child soldier on trial in our for war crimes after holding him for six years, mostly in solitary confinement.

    These haven’t been/aren’t “drive by” abuses committed in the heat of battle. No, they are the products of policies devised at and directed from the highest levels of our government.

    Need I go on?

  8. “However, given the US has no incentive to pick up and abuse innocent people, I don’t think you have the systemic problem that would necessiate such an extraordinary remedy.”

    The systemic problem is: when you are unfamiliar with a country, and don’t know who’s guilty, and rely on bounty hunters & warlords to tell you, you get the wrong people. Which happened. And has been documented. The other systemic problem is: people won’t, after seven years, admit a mistake. Far easier to believe what they want to believe & repeat lies.

  9. Truth and reconciliation commissions are most appropriate where the nature of available evidence, or the institutional capacity to process such evidence, is not adequate for traditional prosecution.  When the crime is widespread and institutionalized – apartheid in South Africa or genocide in Rwanda — it can overwhelm a court system with cases and, at the same time, underwhelm a court system with reliable evidence on which to convict the accused.  Courts do not function well when half of your population may have committed crimes.  How does Rwanda begin the process of rebuilding if for next half-century it is prosecuting to the last man with a machete?  Courts also do not function well when there is no evidence to feed into the system.  It is simply in the nature of certain crimes that they yield little evidence; consider, for example, an apartheid-era South African police officer who stormed into a shantytown at night ten years earlier to beat a victim who would be the only witness to his beating.

    In these situations, prosecution will not provide justice for many.  Expensive deliberations in traditional prosecution can only skim the surface of crimes, and conviction will only be achieved by either lowering the standard of evidence or accepting a disproportionate number of wrongfully acquitted.  Truth and reconciliation commissions greatly lower the evidentiary and punitive elements of dispute resolution, but allow a means of achieving a modicum of justice in otherwise overwhelming circumstances.  Where reliable evidence is available and legal institutions are up to the task of prosecution, justice will almost always be better served by proper courts with all their institutional safeguards and punishments that fit the crimes.

    Fortunately, in the United States our judicial system is well equipped to the task of prosecuting alleged wrongdoers in the Bush Administration.  Their numbers are few.  The evidence is extensive and, we hope, still extant.  In examples like the administration’s FISA violations, to reiterate from the posting above, the perpetrators have openly and notoriously admitted to felonious conduct.  The one thing our society may be a little short on is the resolve.  Failure of resolve, however, is never a justification for using expedient but compromised alternatives to good old-fashioned prosecution.

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