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Originally published March 13, 2009 at 2:52 PM | Page modified March 13, 2009 at 5:19 PM

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Reconciliation commission unlikely to reveal Bush's transgressions

U.S. Sen. Patrick Leahy's exploration of whether a "South African-style Truth and Reconciliation Commission" could answer questions about the Bush administration's illegal acts, including torture, is understandable, says Seattle University professor Ron Slye, who was a legal consultant to the commission. He has several reasons for questioning the appropriateness of investigating the allegations of torture at Guantánamo and elsewhere.

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SEN. Patrick Leahy held a hearing last week to explore the idea of "a South African-style Truth and Reconciliation Commission" (TRC) to investigate allegedly illegal acts, including torture, by members of the Bush administration. While I understand the senator's desire to find out the truth about actions of the previous administration, I question whether this process will actually help us find the truth, or instead will obscure it further.

The most innovative aspect of the South African TRC was the "truth for amnesty" provision, under which individuals who made full disclosure of their illegal acts could be spared criminal prosecution for those acts. By providing amnesty to those who participated in torture and other cruel treatment, the country gained valuable information about those acts, where they occurred, who was involved, and what effect they had.

The amnesty hearings are the best-known feature of the TRC. What is often overlooked, however, is that the carrot of amnesty is effective only if coupled with the stick of criminal prosecution. The TRC supplemented, rather than supplanted, the normal prosecutorial approach to criminal actions. Prosecutions did occur during the TRC process, and it was the threat of prosecution that spurred many applications for amnesty.

Thus, if we are not willing to consider the option of criminal action against former members of the Bush administration, a TRC process will be a hollow one. Without a credible threat of prosecution, there is no incentive for any of the participants to divulge the entire truth.

More importantly, I question the appropriateness of a TRC for investigating the allegations of torture at Guantánamo and elsewhere.

In South Africa, the goal of the TRC was to reconcile a divided country by bringing together perpetrators, victims, survivors and bystanders. When perpetrators and their victims were able to reconcile, it also helped to heal divisions between the organizations and communities from which those individuals came: those who fought for apartheid, and those who fought against it.

In contrast, the divisions in the U.S. are between those who supported the use of torture in interrogating suspected terrorists, and those who opposed it; between those who supported the detention facilities in Guantánamo and those who opposed them; between those who supported the war in Iraq and those who thought it was morally wrong.

The alleged victims of torture are not represented in this equation. Any proposal to bring them to the U.S. from Guantánamo or other facilities — which would be an essential feature of a meaningful TRC process — is simply a political non-starter.

I am all in favor of eliciting testimony from those who were involved in formulating and implementing policies for interrogation that constitute torture. It is likely that the selective use of immunity will be necessary to encourage such testimony — but the same thing happens daily in our domestic criminal-justice system. At the same time, we must vigorously pursue criminal investigations and prosecutions if they are warranted by the evidence.

But what about reconciliation? Unfortunately, we are very far from a situation where we can sit down with those whose rights we have violated and work to heal the past and plan a more peaceful future. Even in South Africa, where the circumstances were more limited and more conducive to such an effort, there is still much work to be done to address adequately the legacy of their shameful past.

Professor Ron Slye teaches international criminal law and international human-rights law at Seattle University School of Law. He served as a legal consultant to the South African Truth and Reconciliation Commission, and is an honorary professor at the University of the Witwatersrand School of Law in Johannesburg, South Africa.

Copyright © 2009 The Seattle Times Company

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