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Parrhesiastic Accountability: Investigatory Commissions and Executive Power in an Age of Terror |
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Jonathan Simon [View as PDF]
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114 Yale L.J. 1419 (2005)
In War and Responsibility, John Hart Ely sought to answer a question that has bedeviled constitutional scholars since the beginning of the Republic: What meaningful checks should be placed on the power of the Executive in wartime? For Ely, the answer was a new and improved version of the War Powers Resolution, a solution entirely in keeping with his support for theories of legal process more generally. Yet in light of the open-ended congressional resolutions authorizing the United States's military engagements in Afghanistan and Iraq, the viability of such legal process approaches to checking executive power in the area of national security is open to question.
This article contends that a reinvigorated version of the independent investigatory commission may represent an effective supplemental check on the power of the Executive. To this end, it examines the experience of the 9/11 Commission and attempts to explain its remarkable successes by reference to a concept known as parrhesia. Celebrated in ancient Greece, parrhesia occurs when a speaker with a personal knowledge of the folly of choices made by his leaders confronts them with evidence of their failures. Whereas past investigatory commissions engaged solely in what can be called an analytics of truth--determining the objective facts of what happened--the 9/11 Commission also opened itself to the parrhesiastic truth telling of those who had experienced the consequences of what happened. This truth moved Congress to act and imposed a measure of accountability on the executive branch.
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