The Commission Option

Fred Hiatt has a pretty reasonable column arguing that rather than ad hoc and limited investigations, we need to look into the torture question through a comprehensive independent commission. That said, I have doubts about this part:

Such a commission would investigate not just the Bush administration but the government, including Congress. It would give former vice president Dick Cheney a forum to make his case on the necessity of “enhanced interrogation techniques.” It would examine the efficacy of such techniques, if any, and the question of whether, even if they work, waterboarding and other methods long considered torture ever can be justified. […] But a fair-minded commission — co-chaired by, say, former Supreme Court justices Sandra Day O’Connor and David Souter — could help the nation come to grips with its past and show the world that America is serious about doing so. It could help Americans understand how this country came to engage in what many regard as vile and un-American practices. It might help the country respond better the next time it is frightened.

It’s hard for me to understand how we can outsource a decision about whether or not “torture ever can be justified” to an independent commission. That’s a policy decision that needs to be made by policymakers. And, in fact, it has been made by policymakers. That’s how torture came to be illegal in the United States. The crux of the matter is that we came to have a bunch of policymakers who no longer believed in that principle and thus they broke the law. This leaves us with a legal issue about what to do with them. But it also leaves the policy issue hanging out there. The main position of the conservative movement at this point is that torture is excellent, and something we ought to engage in. It’s important to resolve that argument, but I don’t see any alternative to resolving it through the political process. A commission can’t do it.