During the Center on Law and Security’s lively December 4 panel, “After Torture: Discussing Justice in the Post-Bush Era,” Burt Neuborne, the Inez Milholland Professor of Civil Liberties, offered his “deck-chair theory of constitutional law” regarding the way the U.S.’s founding document is utilized during national crises: “In nice weather we sit out and we admire it and we ask everybody to come and say what a wonderful chair it is, and then when it starts raining we fold it up and put it away. And the reason that it’s lasted for 230 years is that it’s never gotten wet.” While this description elicited laughter from the standing-room-only crowd, Neuborne and the other panelists, including retired Major General Antonio Taguba, were knee-deep in a sobering topic: how to rejuvenate the nation’s commitment to the Geneva Conventions and other foundations of international human rights law in light of the outgoing Bush administration’s numerous controversial responses to 9/11.
Even beginning to address the legal issues involved in the administration’s acts related to detention and torture is fraught with complications, said Harper’s Magazine contributing editor Scott Horton, because the Department of Justice is implicated in various questionable actions taken by the Bush White House: “The Justice Department itself was the center of the crime scene.” Horton, author of the Harper's piece that provided the foundation for the panel, said that accountability is crucial, not for purposes of vengeance but to negate the Bush administration’s precedents and prevent potential rights abuses by future presidents.
U.S. Representative Jerrold Nadler discussed his own role in pursuing what he sees as clear instances of the current administration’s legal violations. Regarding the resolution he introduced in the House stipulating that Bush should not pardon senior administration members and calling for both an investigative commission and a special prosecutor, Nadler called it “a shot across the bow” meant to warn against imprudent acts in the president’s final days in office. Among other remedies, Nadler advocated a constitutional amendment placing limits on presidential pardons.
Former Congresswoman Elizabeth Holtzman, cochair of the law firm Herrick Feinstein’s government relations practice, insisted that holding the Bush administration accountable for breaking international law wasn’t simply a good idea, but actually required under the Geneva Conventions: “The idea that you need torture to get appropriate information is not accurate.... We handle murders, rapes, robberies every day in New York City and around this country, and we don’t get the information to solve these crimes by beating it out of people.”
After touching on the U.S.’s long history of constitutional violations in wartime, Neuborne stressed the importance of establishing accountability for post-9/11 excesses now or else risk more of the same in future crises. Similarly to other panelists, Neuborne argued for an investigatory commission and a special prosecutor: “If we’re serious this time, then we ought to go after the people who made the policy, not the low-level people who carried it out.” Michael Ratner, president of the Center for Constitutional Rights, predicted general pardons for Bush administration officials, making criminal prosecutions difficult. But, he added, presidential pardons would not rule out legal action overseas; Ratner himself tried to prosecute Donald Rumsfeld in France and Germany for crimes related to the torture at Abu Ghraib.
Taguba, who investigated the Abu Ghraib abuses and wrote the report revealing them to the world, spoke about the contrast between the Army's implementation of numerous corrective actions in the aftermath of the torture scandal and its order to follow international law, and the president’s simultaneous efforts to protect government agents from criminal prosecution. “We expect a lot more from our commander-in-chief than that.... We must have a single, uniform, unambiguous standard in protecting human rights.”