Commission of Inquiry on Torture: A Road Not Taken

Last year the Senate Judiciary Committee considered a proposal by Senator Patrick Leahy to establish a formal “commission of inquiry” that would investigate the conduct of the post-9/11 war on terrorism, including detention, rendition and interrogation policies.  The record of a Senate hearing on the proposal was published earlier this month, but that seems to be all that remains of it.

“It is not enough to say that America is discontinuing the policies and practices of the recent past,” said Amb. Thomas Pickering, one of the witnesses who testified in favor of the idea at the March 2009 hearing.  “We must, as a country, take stock of where we have been and determine what was and is not acceptable, what should not have been done, and what we will never do again. It is my sincere hope that the commission will confront and reject the notion, still powerful in our midst, that these policies were and are a proper choice and that they could be implemented again in the future.”

While commissions are rarely effective in advancing policy changes, they often serve to produce a detailed public accounting and an expanded documentary record, even when the subject matter is otherwise generally classified.  From the Church Committee to the 9/11 Commission, such investigations have provided permanently valuable bodies of knowledge.  And from that point of view, the failure to pursue a commission of inquiry to ventilate the persistent controversies of the recent past seems regrettable.

Opponents argued that the commission would inevitably turn into a partisan witch hunt;  that it was unnecessary, since the Obama Administration had already pledged to chart a different course;  that the Justice Department was responsible for ascertaining if any crimes had been committed, and prosecuting them;  and that anyway, it was time to move onward.

“We really ought to follow regular order here,” argued Senator Arlen Specter. “You have a Department of Justice which is fully capable of doing an investigation. They are not going to pull any punches on the prior administration.”

Senator Patrick Leahy, who sponsored the proposal and convened the hearing, said he would only move the idea forward if there was a bipartisan consensus behind it.

“This idea for a commission of inquiry is not something to be imposed,” Sen. Leahy said. “Its potential is lost if we do not join together. Today is another opportunity to come forward to find the facts and join, all of us, Republicans and Democrats, in developing a process to reach a mutual understanding of what went wrong and then to learn from it. If one party remains absent or resistant, the opportunity can be lost, and calls for accountability through more traditional means will then become more insistent and compelling.”

No such consensus could be achieved, and the proposal was abandoned.

See “Getting to the Truth Through a Nonpartisan Commission of Inquiry,” Senate Judiciary Committee, March 4, 2009.