19 Nov No, a Truth and Reconciliation Commission Wouldn’t Work
Salon.com has an article today about the Obama administration and torture that floats the horrifying possibility — all too real, I’m sure — that Bush will issue a blanket pardon for “anyone who participated in, had knowledge of, or received information about Bush’s interrogation program during the so-called war on terror.” I’m not going to waste precious pixels responding to that possibility; Jonathan Turley said it all when he told the Salon reporter that such a pardon “would allow a president to engage in massive illegality and generally pardon the world for any involvement in unlawful activity.” I’m more interested in one law professor’s rationale for favoring a blanket pardon — that it would make it easier for a truth and reconciliation commission (TRC) to function effectively:
There are, in fact, some constitutional scholars who believe a pardon might actually facilitate more complete participation in a fact-finding commission, by removing the threat of looming liability. “Holding people accountable is certainly nice, but in terms of healing the country and moving forward, so is actually getting a clear picture of what happened and letting the public make an informed decision,” said Kermit Roosevelt at the University of Pennsylvania Law School. “If we had a pardon followed by something like a truth and reconciliation commission, that might not be such a bad outcome.”
I have the utmost respect for Professor Roosevelt, but this statement completely misunderstands the nature of a TRC. Perpetrators have an incentive to tell the truth about their crimes only if the alternative is criminal prosecution; if you pardon them for their crimes in advance, they have no incentive to testify. It’s a seemingly obvious point: why would government officials admit to being complicit in torture if they had nothing to gain by doing so? Out of their demonstrated sense of civic duty?
Indeed, as I pointed out a few months ago, perpetrators of serious crimes are unlikely to testify before a TRC even if they face prosecution for not doing so. South Africa’s vaunted TRC conditioned amnesty on truthful testimony, yet “almost no high-ranking officials of the apartheid government came forward to ask for amnesty.” The reason why isn’t a mystery: of the 5,000 perpetrators who were either denied amnesty by the TRC or refused to cooperate with it, fewer than ten were ever actually prosecuted.
The bottom line is that there is only one way to make a TRC work: condition amnesty on testifying — and prosecute those who refuse. All of them.