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Crime and Punishment: Scholars Weigh In on the Bush Legacy

By       Message Lynne Glasner     Permalink
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Crimes have been committed by the Bush Administration. About that there was no dissent among the illustrious group of Bush critics who participated in a panel discussion sponsored by the NYU Law School Center on Law and Security and Harper's magazine on Thursday evening (12-4) in New York City. The panel members differed only in their assessment of what action might be taken going forward to prevent the precedents that will be the Bush legacy.

The panel included Scott Horton, Elizabeth Holtzman, Michael Ratner, Burt Neuborne, Major General Antonio Taguba, and Rep. Jerrold Nadler, and while there was very little disagreement, each offered a somewhat different approach to prosecuting Bush & Co. The differences were about process not substance, demonstrating that there is no clear law that can be used to hold the Administration accountable, particularly if the President issues a pardon. As each of the panelists explained the legal implications of the various investigative methods that might be applied going forward, the elephant in the room was obvious. The opportunity to use the only legally appropriate path for investigating the specific crimes and holding people accountable for them has come and gone.

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The panelists, legal and Constitutional scholars in their own right, all seemed stymied by the fact that the Constitution has been ignored not only by the current occupant of the White House but also by Congress whose job is to maintain the balance of powers. Impeachment was and remains the tool that has the unique ability to deal with an errant president, yet the "I" word was rarely used during the two-hour discussion before a standing-room-only crowd. Only once were a few shout-outs of impeachment uttered, and these voices were ignored without disruption. Like Obama, they were looking forward and took pains not to review the past.

Yet looking at the past of each of the panelists, with the exception of Taguba, all have been involved in making some effort to explore roads to impeachment. Of the six, Nadler (D-NY-CD8) is the only elected official and thus the only one who had and still has any power and standing to do anything. Notably, he left the meeting early, before anyone could question him.

For the last two years, Nadler has presided over the Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Civil Liberties, and as chair has resisted all efforts from his constituents to introduce impeachment articles or even to open hearings that would investigate such charges. Just before the Thanksgiving holiday, however, he did introduce a "sense of Congress" Resolution, HR 1531, which accuses Bush and his Administration of a host of crimes.

Nadler's web site states that "The Resolution aims to prevent undeserved pardons of officials who may have been co-conspirators in the President's unconstitutional policies, such as torture, illegal surveillance and curtailing of due process for defendants."

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This is how Nadler characterizes the resolution. But the Resolution itself can't in any way prevent a pardon; the Resolution and its objective are at odds. The first sentence makes the problem self-evident: "Expressing the sense of the House of Representatives that the President of the United States should not issue pardons to senior members of his administration during the final 90 days of his term of office."

A sense of Congress bill has no legal force. It is used to simply express an opinion of members of Congress for the record. Nadler and the rest of the lame duck Congress can express their sentiments all they want. So what? No one honestly believes that Bush won't do something because Congress thinks he "shouldn't." We know that Bush should not have done a lot of things – isn't that the point? After all of the hearings, the repeated I don't recalls, the letters and subpoenas ignored, emails deleted, etc., sadly this is the best this Congress and one Congressman can come up with. And even this resolution, as toothless as a baby, so far has no co-sponsors.

The question is if the resolution is so useless, why did Nadler bother? The various impeachment lobby organizations are split. Some even say that his goal was to split his opposition, i.e., the impeachment proponents and activists who have been hounding him since he took over the chairmanship in 2006. One camp is still pushing for impeachment; others are focusing on prosecution after Bush leaves office; and most of the public, including some former activists, have given up entirely, hoping that the new Congress will do better.

Maybe they will (it would be hard to do worse), but the panelists agreed that precedents for extended executive powers have been set and unless they are not allowed to stand, legally they will remain with us forever. Simply stated, their effects will change our democratic government as we know it. The fix, however, is not so simple. Impeachment is the clearest push-back for a President who thinks he is above the law, as was shown with Nixon and confirmed indisputably by the newly released tapes of some of his conversations.

In spite of loud protests, petitions, letters from a large contingent of citizens, however, impeachment has remained off the table, and for that the blame lies with Speaker of the House Nancy Pelosi and the Democratic leadership (sic). What political machinations were responsible for this, we may never really know. What we do know is that at this point, crafting a piece of real legislation that is constitutional and does not exploit impeachment turned out to be an impossible task. Sources say that Nadler's staff was in touch with Constitutional scholars when they were drafting HR 1531, and the resultant resolution is the best they could come up with given the hand they were dealt.

Some say that Nadler is using this to take cover by going on record. Perhaps, but it's hard to see how this would satisfy those constituents who have been upset with his lack of action anyway. People will still be mad at Nadler (or whomever) and can continue to speak out.

The ongoing investigations at the Dept. of Justice will be continued in the new Administration. The current Inspector General, Glenn Fine, is actually a Clinton holdover who has managed to retain in his position. Whether or not Obama will keep him remains to be seen, but even under Bush he has managed to continue to probe the terrorist surveillance program and the FBI eavesdropping program. The other ongoing investigation is that of John Durham who is charged with looking into the destruction of legal documents - the videotapes of the CIA waterboarding interrogations.

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Whether or not Bush issues a nuclear pardon, the panelists agreed that legal avenues for pursuit can and must be taken to prevent legal precedents and a major shift in the balance of powers. One possibility mentioned was that a pardon used to cover up a crime could in itself be an impeachable offense, and apparently there is some foundation for impeachment after leaving office. But the truth is we are in new legal territory when attempting to prosecute a former president and his minions for crimes committed during their tenure in office. These are possible avenues of legal pursuit, not slam dunks.

Prize-winning journalist/reporter Seymour Hersh said that once Bush is out of office, whistleblowers will start to come out of the woodwork. "You cannot believe how many people have told me to call them on January 20," he told Rachel Cooke of the Guardian (UK) in October. Undoubtedly, Hersh will record their stories and protect his sources as needed, and his work will help expose the truth, but it still doesn't answer the question of accountability. For that, Hersh is not optimistic. "They've got away with it, categorically; anyone who talks about prosecuting Bush and Cheney [for war crimes] is kidding themselves."

Whatever new evidence comes from whistleblowers after January 20, squaring the law with accountability will take the best legal minds as well as wide public support. In the days before his own inauguration, Bush talked a lot about accountability and how he wanted to restore confidence in the White House. He pledged to "uphold the laws of the land ... and uphold the honor and the dignity of the office [of the president]." It's also hard to square Bush's words with his deeds. It is absence of accountability and the big shift in executive power that is the real Bush legacy.


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Lynne Glasner is a freelance writer/editor based in New York City. She has edited numerous books, fiction and nonfiction, many on political subjects. Her essays have appeared in Commondreams,, and Huffington Post as well as OpEd (more...)

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