Fenster on The 9/11 Commission and Institutional Form

Mark Fenster, University of Florida has posted a new paper, Designing Transparency: The 9/11 Commission and Institutional Form. Here's the abstract:

Surpassing the low expectations established by previous investigatory commissions and overcoming the political and legal obstacles created by the Bush administration's opposition to its creation, the 9/11 Commission accomplished what appeared to be the impossible: an authoritative investigation, a widely-read final report, and direct influence on significant legislation. At a time when legal scholars have committed themselves to the study of innovative institutional design, the formal legal innovations and administrative operations of the 9/11 Commission warrant close examination to consider whether and how it can serve as a model for similar institutions in the future. This Article argues that the 9/11 Commission indeed offers an important model for encouraging or forcing the executive branch to disclose information about an especially significant and controversial past event or future decision. As such, it suggests that Congress or the President consider establishing such commissions when information held by the executive branch can help the public to hold the state accountable for past actions or decide whether to support important, irreversible decisions the state must imminently make. The 9/11 Commission demonstrates that transparency can be better achieved in a time of crisis through institutional design than through constitutional common law and statute. The Article is less sanguine, however, about the 9/11 Commission as a model for policy formation. With limited accountability and relative independence from the political branches, an ad hoc, independent institution can make errors or misjudgments that can in turn have undue influence over the legislative process. Congress or the President should therefore limit the legal authority granted to investigative advisory commissions established during times of crisis so that political actors can fully deliberate over their prescriptions.