As I wrote before, an investigative commission is an imperfect solution to a daunting problem, and both Daniel and Rep. Edwards have pointed, quite rightly, to some of its most glaring imperfections.

It is true that the legacy of the Bush years is as much a saga of congressional abdication as it is of executive overreaching, and that oversight is Congress's constitutional duty. But I think a few distinctions need to be made here. One is that investigations have not been the exclusive province of the legislative branch in the past. Rep. Edwards points to Truman's investigations of the War Department and the Watergate hearings, but the Warren and Rockefeller Commissions were both executive branch affairs, and the 9/11 Commission was a hybrid executive/legislative project. Congress itself created several
effective non-legislative oversight tools in the years after Watergate, including the Foreign Intelligence Surveillance Court and the inspector general system. So while convening a commission may not help restore Congress's standing, I'm not convinced that it does it any further damage, either.

It is true, however, that while all commissions and select committees have had mixed results, those launched by Congress have been in general far better. The implicit motive of many if not most presidential inquiries has been to bury the issue at hand--as Daniel argues, "the initial decision to form the commission is something of an admission that some degree of covering up for the last administration is expedient and desirable for all involved." (I don't think that's true in this case, but that's fodder for another post.) The one real side-by-side comparison we have of the two options is the Senate's Church Committee and President Ford's Rockefeller Commission, which were convened more or less simultaneously to look into post-World War II intelligence abuses. The Church Committee produced a damning history of assassination plots and domestic surveillance; the Rockefeller Commission was far less aggressive (though its report was tougher than expected) and widely viewed as a cover-up.

But the perception of partisanship and political ambition clouding good judgment has, rightly or wrongly, often hurt the ability of congressional committees to make their recommendations stick, or at least overshadowed them, a problem that goes back as far as the Senate Munitions Inquiry in the 1930s. More of the hybrid 9/11 Commission's recommendations were passed into law than those of the strictly legislative Church Committee (or, for that matter, the Munitions Inquiry). Nor has defining these things in the terms of the legislative-executive power balance necessarily been a useful thing--Rep. Otis Pike's House committee, which worked concurrently with the Church Committee, received less cooperation from the intelligence community and ultimately produced lesser results (which were voted down by Congress) in part because its members got bogged down in arguments with the agencies over whether as legislators they had unilateral authority to declassify documents.

So this is ultimately a pick-your-poison kind of question, I think. The best solution--and again, none of them are perfect--seems to me to be for Congress, with or without the cooperation of the Obama administration, to create a commission and set the basic terms of its investigation, but give it an independent membership and staff. (This comes with the caveat, as Daniel notes, that no commission can be truly removed from politics, and that its composition matters a great deal.) And most importantly, the task of drawing on a commission's findings to implement if necessary new limits to executive overreach and strengthen the rule of law--the more substantial element of oversight--does fall to Congress itself.

I'll leave the matter of a criminal investigation on the table for the time being, but I think it's worth clarifying what exactly we're talking about when we talk about a criminal inquiry. Is it worth pursuing because there is an actual chance at sending top administration figures to jail? Or is it worth pursuing because the threat of prosecution, however empty, is a useful tool to compel testimony?