Designing Transparency: The 9/11 Commission and Institutional Form

1. IntroductionConceived by Congress when partisan recriminations appeared ready to thwart serious investigation, the National Commission on Terrorist Attacks Upon the United States (popularly known as the "9/11 Commission") fell within a long tradition of governmental efforts to use an independent advisory commission to study and explain a traumatic, tragic event of national import.1 Given its generic institutional form, the 9/11 Commission should not have inspired great expectations as either an authoritative investigator of the attacks' causes or influential architect of national security reform. Similar investigatory advisory commissions have seen their conclusions questioned, repudiated, or both, and their reputations reduced to punch lines or conspiratorial bugaboos.2 The aura of futility extends even to more common advisory commissions (or committees),3 whether formed by the President, an Executive Branch agency, or Congress.4 The ability of advisory commissions to influence government and public consciousness seems to fall within a narrow range - from marginal to nil-and rare is the commission whose proposals are actually adopted into law or regulatory rule.5If the generic institutional form of the special commission was not sufficient to damn its pretension to effective, independent investigation, the 9/11 Commission also worked within a political environment that appeared positively paralyzing.6 The White House and Congress initially opposed its creation;7 when Congress finally relented, it limited the Commission's funding and imposed upon it a deadline for its final report that seemed nearly impossible to meet.8 Then, as the investigation proceeded, the Executive Branch resisted many of the Commission's efforts to gain access to documents and personnel for interviews.9Despite these impediments to its success, the 9/11 Commission produced an unanimous report that forced a strong measure of transparency10 on an administration committed to information control and executive prerogative and privilege, and offered an array of major legislative and regulatory proposals.11 The Commission declared and attempted to maintain - and, equally importantly, appeared to maintain - independence from the political, military, intelligence, and regulatory institutions and actors it studied. 12 The news media and public followed the Commission's operations, and its final report was widely read.13 Congress and the Executive Branch adopted many of its recommendations.14 Working within an institutional form replete with commissions that accomplished little despite celebrated beginnings and prominent members, the 9/11 Commission may have had the greatest legislative impact in the form's history and appears to have provided the authoritative account of the 9/11 attacks.The 9/11 Commission's anomalous success thus poses an institutional and historical puzzle for scholars of administrative law and political institutions: What was the nature of the Commission's success? How and why did this success occur? Is it replicable, and is it something worth trying to replicate? The answers depend upon how one regards both the 9/11 Commission itself and the advisory commission as an institutional form. Viewed one way, the Commission's success appears to be the unique result of a contingent combination of historical events - the trauma of the terrorist attacks, the political dynamics that shaped the latter years of President George W. Bush's first term, the internal operations of the Commission itself - that is unlikely to recur. Conversely, the Commission's success can be read as a demonstration of the advisory commission form's potential. Its deliberative, expert, and independent consideration of the attacks' causes, like its clear enumeration of the steps that the nation and government must take to prevent additional terrorist acts, proves that advisory commissions can deliver the intellectual and legislative goods that the administrative state supposedly offers. …