CONTENTS INTRODUCTION: WAR, RESPONSIBILITY, AND TRUTH TELLING I. WAR AND RESPONSIBILITY II. TRUTH TELLING AND GOVERNING: THE INVESTIGATORY COMMISSION AS A PARRHESIASTIC AGENCY A. The History of the Investigatory Commission B. The Structure of the Investigatory Commission III. NATIONAL COMMISSIONS A. Pearl Harbor and the Roberts Commission B. The Warren Commission C. The 9/11 Commission 1. Distinctive Characteristics 2. The Commission's Role as Parrhesiastic Truth Teller D. From Investigatory Commissions to Truth Commissions: The Role of the Victims CONCLUSION INTRODUCTION: WAR, RESPONSIBILITY, AND TRUTH TELLING
John Hart Ely's classic book War and Responsibility chronicles and critiques the behavior of American constitutional actors in the conduct of the Vietnam War. (1) At its core, War and Responsibility is concerned with the problem of checking executive power in the area of national security. Ely's solution rests heavily on his strong belief in legal process, the underlying presumptions of which have been subjected to much criticism. (2) It seems clear that in light of the expansive assertions of executive power recently made by the Bush Administration in its prosecution of the War on Terror, there is an urgent need for new mechanisms to ensure executive accountability in the national security context.
This article suggests that investigatory commissions may represent an effective supplemental check on the power of the Executive. The experiences of the 9/11 Commission--on which this article draws--demonstrate that an actor outside of the three branches of government may, in certain contexts, play an important role in influencing the behavior of these branches. This article argues that the reason for this newfound power stems from a transformation in our understandings of truth--and of truth telling.
Investigatory commissions have long been associated with expert technical knowledge that is gathered scientifically and applied dispassionately. Like investigatory commissions of the past, the 9/11 Commission mobilized these so-called "analytics of truth" (3) in the course of its detailed investigation of government decisionmaking on and before September 11, 2001. Unlike its many predecessors, however, the 9/11 Commission also engaged in a different mode of truth telling, one associated not with technical experts but with ordinary individuals transformed by the violence of September 11. This mode--which I call "parrhesiastic" truth telling--emerged alongside the analytics of truth in ancient Greece and has been translated by Michel Foucault to mean "fearless speech." (4) In his words,
[P]arrhesia is a verbal activity in which a speaker expresses his personal relationship to truth, and risks his life because he recognizes truth-telling as a duty to improve or help other people (as well as himself). In parrhesia, the speaker uses his freedom and chooses frankness instead of persuasion, truth instead of falsehood or silence, the risk of death instead of life and security, criticism instead of flattery, and moral duty instead of self-interest and moral apathy. (5) Parrhesia does not function by leading listeners to a truth through the performance of reasoned argument or the manipulation of less reflective instincts (as philosophy or rhetoric might). A parrhesiastic speaker produces a truth that comes uniquely from her self and her experience and is directed critically at a listener whose power places the speaker in potential danger. In the classic Athenian mode, a parrhesiastic speaker confronted a god, a sovereign, or the assembled citizenry through a direct revelation of experienced truth. As such, parrhesia is dangerous speech, raising the possibility that those with power will retaliate against the speaker as much as the possibility that the holder of power will be shamed or otherwise moved to redress the wrong. Because of its risk, parrhesia was not a form of self-interest or therapy. Rather, it was a recognition of a duty to another or to society as a whole.
The right of parrhesia meant that speakers with a personal knowledge of the folly of choices made by the sovereign (whether democratic public or king) could confront leaders with their failures. The Athenian tradition demanded that sincere parrhesiastes be heeded and left unharmed, but the risk of a less worthy response (i.e., retaliatory violence) also guaranteed the reliability of the critique. Parrhesia went into decline in Greece during the fourth century B.C. and has largely been ignored by modern theories of government.
Today, victims have emerged as perhaps the most important source of parrhesia. (6) By reproducing the violent emotions they have experienced, victims who choose to speak parrhesiastically can destabilize political and legal authority. For much of the past two decades, this practice has been directed at the criminal justice system, as violent-crime victims have spoken out against the courts, parole boards, and other decisionmakers whose management of dangerous criminals has failed them. With the 9/11 families and their alliance with the 9/11 Commission, parrhesia has moved out into a far more general critical engagement with government.
To a degree unprecedented in the history of federal commissions, I contend, the 9/11 Commission relied on the power of parrhesiastic truth telling by its own members (and leaders), by some of its witnesses, and most importantly by the victims of violence to impose a measure of accountability upon the executive branch. The Commission's relationship with the victims transformed it from an institution anchored completely in the analytics of truth into one infused with parrhesiastic truth. The victims operated almost as a chorus in Greek drama, providing an onstage audience for the central public hearings of the Commission. This chorus gave voice to public criticism of the Commission, the President, and other political actors who stood in the way of discovering the truth behind the events of September 11. The parrhesia of the victims (both actual and threatened) helped shape the decisions made by the political actors. This dynamic was best exemplified by the testimony of Richard Clarke, a counterterrorism official in several administrations, whose words unquestionably belong to the parrhesiastic tradition.
Parrhesia, even amplified by a national commission, is no substitute for the congressional responsibility that Ely envisioned. Commissions may, however, offer a crucial mechanism for bolstering the constitutional scheme in national security. Congress's willingness to participate forcefully and coequally in deciding how far to extend the War on Terror may depend on the degree of parrhesiastic accountability imposed on it by the 9/11 Commission. In short, the success of the 9/11 Commission suggests a way to supplement Ely's goal of promoting congressional responsibility by undertaking inquiries into executive action or inaction in matters of national security as well as into the assertion of congressional policymaking power over those matters.
In the remainder of this article, I develop this vision of investigatory commissions as sources of parrhesiastic accountability. In Part I, I sketch out the reasons why Ely's legal process solution to the accretion of executive discretion over war powers may fail, especially in the conditions of the War on Terror. Part II explores the history of investigatory commissions. Part III examines the experience of several commissions in the context of parrhesiastic truth telling.
WAR AND RESPONSIBILITY
War and Responsibility takes the reader on a long and detailed tour through the formal acts undertaken by Congress, the President, and the courts relating to the war in Southeast Asia between 1953 and 1975. Most of the book's constitutional theorizing consists of a largely originalist argument for why there is no serious doubt that Congress was meant to be a politically accountable check on the ability of the Executive to go to war. (7) The book depicts and critiques the rise of presidential power to initiate and continue war without meaningful approval by Congress. (8)
War and Responsibility grew out of a series of law review articles at a time of great public debate about the war powers, occasioned by the recent history of small-scale and proxy wars conducted by the administrations of Ronald Reagan and George H.W. Bush in places such as Lebanon, Grenada, Panama, Iraq, El Salvador, Nicaragua, and Guatemala. The book makes a focused case for a new and improved War Powers Resolution-which Ely calls the Combat Authorization Act--based closely on the existing War Powers Resolution of 1973. (9) For a variety of reasons, these legal process solutions to the dominance of executive power over national security have not proven successful at shoring up congressional authority. Ely notes that President Reagan and the first President Bush largely ignored the strictures of the War Powers Resolution. (10) Both the terror attacks of September 11 and the Iraq War have raised further doubts about the efficacy of relying solely on legal process to create the political conditions under which Congress will exercise its constitutional responsibilities. (11)
The wars since September 11--Afghanistan and Iraq--have both been approved by Congress. (12) In the case of the March 2003 invasion of Iraq, the major basis on which the authorization to go to war was granted--Saddam Hussein's alleged development and deployment of weapons of mass destruction--has collapsed. (13) It is clear that Congress by and large failed to challenge the President's aggressive interpretation of existing intelligence. Because that interpretation was endorsed by top U.S. intelligence officials, both Congress and President Bush have sought to deflect blame onto the actions of the intelligence community.
In my view, few, if any, of these issues would be meaningfully dealt with by Ely's proposed Combat...