Parrhesiastic Accountability: Investigatory Commissions and Executive Power in an Age of Terror
Simon, Jonathan, The Yale Law Journal
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. …