It seems to me that James Wimberley wants two outcomes that, under the circumstances, are in practical conflict. He wants the wrongdoing of Bush Administration exposed and formally adjudged, and he wants the perpetrators punished.
A Truth Commission could usefully procure and review documents, question friendly witnesses, and prepare a report. But it could not question hostile witnesses, including the perpetrators themselves; they could, and would be advised by their lawyers to, plead the Fifth Amendment privilege against self-incrimination as a reason not to testify at all to a tribunal functioning more or less as a Grand Jury.
Of the two objectives, I prefer exposure to punishment. As ironic as it would be to hear the right wing whining about “political prosecutions” after what Bush & Co. did to poor Don Siegelman, we really should be loath to establish by precedent that the winners of elections get to put the losers on trial.
A full Truth and Reconciliation Commission, by contrast with a Truth Commission, functions under the rule of amnesty for whatever crimes are confessed to before it. Though there is, to my knowledge, no precedent for such a thing under common law or in American experience, nothing would prevent Congress from establishing such a body and giving it full subpoena powers. Then no Fifth Amendment question could arise, and we would have the pleasure of watching Dick Cheney, among others, answering questions in public under the pains and penalties of perjury, while the smaller fry crowded in to, as one of George Higgins’s cops remarks, “make a good Act of Contrition” at the expense of their superiors.
I’d want to extend the remit of the commission far beyond torture and war crimes to all the skulduggery of the Bush MalAdministration. Or perhaps we need two commissions, one for torture and war crimes and the other for corruption and obstruction of justice.
Much as long sentences for torturers and their enablers would do for the cause of penal reform — a cause I treasure — I’m prepared to settle for exposure and obloquy, especially because, political realities being what they are, that’s the most we’re likely to get, or, rather, more than we’re likely to get.
What’s not clear to me is which way to start. One option would be for the President to propose such a commission or commissions early in the administration: in his first State of the Union address, perhaps foreshadowed in his Inaugural. The other would be to let the criminal machinery get under weigh, and offer the commissions as a gesture of good will to the friends of the criminals involved.