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.
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."
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.