on justice in the post-Bush era, held at the New York University Law School Center on Law & Security in Manhattan, December 4, 2008. I rode up on Amtrak from Fayetteville to be there.The occasion of this forum was the publication of an article by humans rights attorney Scott Horton, “Justice After Bush,” in the December 2008 issue of Harper’s Magazine.
Key topics: An “Accountability Movement”? A special Commission? Pardon Poker playing? Opening Up Victim Lawsuits? And What can This Mean for Anti-torture activists??
The Harper's article is not online, but has been widely discussed. (Transcripts of two interviews with Horton about the piece are here and here ; an online video conversation with Horton and fellow panelist Michael Ratner is here .)
In sum, Horton argues for creation of a special federal commission to investigate torture and related crimes in the past eight years, and thus lay the groundwork for later accountability actions, including prosecutions. The commission’s structure and selection process would be complex, and this complexity became a point of contention, but I won’t try to tease out those technicalities here.
The forum brought together a number of major players in what might be called the “accountability movement,” including, besides Horton: Michael Ratner of the Center on Constitutional Rights, US Rep. Jerrold Nadler, Chair of the House Judiciary Subcommittee on the Constitution, which would have a major role in any congressional action; Retired Army general Antonio Taguba, who led the investigation o the Abu Ghraib torture scandal; Former US Rep. And prosecutor Elizabeth Holtzman; Burt Neuborne, Legal Director, Brennan Center for Justice, New York University.
Heavyweights all, but not ponderous, and all articulate.
A summary of the discussion could best begin with Neuborne, because he put the accountability movement vividly in historical context. He argued that in practice, the US has had a “folding chair” attitude toward our constitution and bill of rights. Especially in times of real or perceived crisis, our rulers have “folded up” these guarantees and put them away for quieter times:
The jailing of dissidents under the Alien & Sedition Acts in the John Adams administration (1798-1800); Lincoln’s suspension of habeas corpus in the Civil War;
Persecution of war critics and Conscientious Objectors during World war One; and
The internment of Japanese-Americans in World War Two ; etc.
Moreover, those who carried out these policies of repression generally got away with it, Neuborne noted. In line with this history, such impunity is clearly what the current perpetrators expect to maintain. So the current accountability movement is among other things an effort to interrupt this long line of unhappy precedents.
To achieve such a reversal, Neuborne contended that the movement will need an overall accountability strategy, which is likely to encompass a range of initiatives. I’ll say more about some ideas he mentioned later.
Special Commission: Regarding Scott Horton’s special commission proposal, Michael Ratner’s response was the most critical, insisting that a special prosecutor and early indictments were the most urgent priority. Jerrold Nadler, as might be expected from a member of Congress, argued that Congressional hearings were also important, and perhaps a better way to find out the hidden facts needed for further action.
Burt Neuborne was ambivalent; one the one hand, he said the record of such commissions is that they can be used to cover up the truth as much as to reveal it. But on the other hand, he recalled the work of the US Civil Rights Commission in the 1950s, when it held highly-publicized hearings in various states and cities, where both the practices and key protagonists of racism and segregation were exposed and shamed.
Such “shaming,” he said, was an important non-criminal tool for accountability, and needed to be part of the accountability strategy.
And let me put in an oar here briefly: While I’m unsure about the practicality of Horton’s specific commission model, I do agree with him on its purpose. It is the proper preliminary to prosecution, by getting the facts of the torture regime, making them known in an official way in the glare of the media, and thereby educating the public about the extent and depth of the lawbreaking and general evil of it all.
Call this Overcoming the “24" effect, the glamorization of torture --by US agents--in popular media over the past several years. Such a process will be needed to make prosecutions of former high officials publicly and politically acceptable. And it will take time, a few years I would guess.
I differ from Horton in that I don’t want to see inquiries limited to one avenue, such as a commission. I say, let a dozen investigative flowers bloom, in Congress, a commission, the courts, inspectors general, even the states (Hello, NC Attorney General Roy Cooper? Paging Roy Cooper!) If one investigation is a whitewash, another can rinse the whitewash off.
Now, about pardons: Horton said he believes a high stakes “poker game” is underway about pardons for torturers. On the one hand are the recent statements by AG Mukasey that no pardons are needed ) , because no crimes were committed by administration officials. Horton noted that it’s highly improper for an Attorney General to be speaking in such a way, publicly pre-judging the merits of potential future prosecutions. So why was Mukasey doing it?
Horton thinks Mukasey and his masters are trying to goad Obama and his team into making some kind of calm-the-waters statement about letting bygones be bygones, looking forward and not backward, and ruling out prosecutions too. There have been reports that some Obama insiders are pushing just this line .Which would put Obama in the no-prosecutions camp too.
Neuborne, by the way, agreed such a move was possible. He said he had voted for Obama with pleasure – but that every president is forced to make political compromises. Thus, Neuborne said, he had also filed civil liberties lawsuits against every president since LBJ (that’s forty-plus years and eight presidents, for those who forgot the math), and he fully expected to end up filing suits against the Obama administration too.
But Horton said he figured Obama for a smart poker player too, and expected him to make no clear statement at all about the possibility of prosecutions. That way, his options remain open, and he avoids taking flak about any specific plan.
There was also division among the panelists about the extent of pardons. Neuborne said he thought GWB would issue pardons, but aim them “too low,” mainly at those who had actual involvement in carrying out torture programs, in the CIA, military, etc. Neuborne figured GWB would buy Mukasey’s argument about higher-ups not needing pardons and would skip them. This would, Neuborne felt, be a boon to the accountability movement, by leaving high officials more vulnerable to future enforcement actions.
To Michael Ratner, this was wishful thinking. GWB will pardon everybody including himself, Ratner predicted. Horton added that he did not expect any pardons to be announced until the last possible minute, the morning of January 20 itself.
One other reason for Obama to stay cool about prosecutions and pardon talk, Horton argued, is that when the pardons come, there is likely to be a big uproar in the media and Congress, and if Obama has steered clear, all this negative attention will fall on GWB and the other conspirators.
A Brief Sidebar on Victim Lawsuits: During the Q&A, I asked Horton and Ratner about lawsuits and the “state secrets” defense. Could the Obama administration open the courts to lawsuits by victims like Khaled el Masri by simply NOT raising the “state secrets” defense? GWB has used this consistently to squash any such redress.
It seemed to me that this would be an easy thing politically for the new team – NOT doing something rather than taking some big initiative. Obviously, though, there ought to be pressure for the administration to stop raising the state secrets defense, or to sharply limit its use; and if that happens, then we can call for more victim lawsuits to be filed and supported.
To my gratification, both Horton and Ratner responded that this indeed could be done, and it WOULD open the US courts to victims. But also in response to my query, Elizabeth Holtzman, ever the prosecutor, dismissed this matter as irrelevant. Prosecuting GWB was what she felt was important. (She has even published a book on the topic.)
While I admire Holtzman’s go-for-the-jugular instincts, and I’m fine with prosecuting GWB, I still think the victim lawsuits concern has much merit. For one thing, as Rep. Nadler had said earlier, torture victims need and deserve redress; that’s simple justice. But for another, as these lawsuits proceed to discovery, many documents will come to light. What is learned in one case can be useful to another, and to the larger effort to get the truth which a commission, and other investigations will also be seeking. The information-gathering will be cumulative. Every revelation will help.
Now what does any of all this brilliant talk mean for those of us on the ground, in my case here in North Carolina, and the groups I work with, Quaker House and NC Stop Torture Now? Here are a few early ideas that have occurred to me; but clearly all this needs more discussion. Readers from other areas can make appropriate adjustments.
1. Add the phrase “Accountability Movement”to our action vocabulary. I’m not sure now whether someone on the panel used this phrase as such, or it just emerged; but I believe it’s now “in the air.”
Maybe it was spoken by Karen Greenberg, the Executive Director of the Center on Law and Security at NYU, in her introduction to the panel. She did say that in her view the discussion of torture had shifted in recent weeks from whether the US had engaged in torture, and whether that was bad, to an assumption that it had happened, it was wrong, and the issue now was HOW to institute a process of accountability for it.
I think Greenberg is right, but this shift has only begun, and I believe we can assist it, in particular by speaking about the “accountability movement,” and identifying our work as part of it.
2. Join the chorus against the pardons. I hope we’ll get ready to help raise hell about the pardons, to increase the pressure for an investigative response, in Congress and elsewhere. This ought to be a big opportunity.
3. Ramp up state and local-level actions. Most on the panel seemed to see only the federal courts and agencies as potential venues for the accountability movement. For such heavy hitters, that’s their typical milieu. But it’s not the only one. For instance, for three years now we’ve been productively active here protesting the presence of “torture taxi” planes used for rendition, as well as other aspects of the system , and we’re not about to stop. There are many other localities where similar parts of the “Torture Industrial Complex” are located, that could likewise be targets for local and state action.
After the session, I approached Michael Ratner, identified myself as working with STN and against Aero Contractors, the NC-based CIA shell company that is the main torture taxi outfit. He knew Aero instantly – and I asked if there were any possibilities for state-level action. He expressed interest in exploring this side of possible accountability action, and I hope some collaboration will develop.
If I have one criticism of the nascent accountability movement, it is that thus far it is too Washington and New York centered. Of course, the brainpower and institutional weight of the NYU panel will be indispensable to its success. But I think they will also need active support from below as well, the sort of action being spearheaded by NC Stop Torture Now.
Addendum: Here are a couple points I didn't get to in the initial report, about the military aspect, and some legislative possibilities:
#1. Panel member Gen. Antonio Taguba. He is or should be a hero to "accountability movement" folks, not only for his pioneering probe of Abu Ghraib, which he carried out even though it cost him the end of his military career, but also his clear declaration last summer of the truth of war crimes by the current administration, and a call for accountability .
He spoke at the panel on behalf of military folks, and pointed out that, however incomplete, there HAS been corrective and punitive action in the military, in response to cases of torture; upwards of 200 soldiers have been disciplined for involvement in torture, and their current orders are not to do it. (This does not apply to the CIA and other secret outfits.)
Sure, there are more soldiers, especially generals, who should face such action; when I spoke to him about this after the panel, he agreed, and mentioned a couple of names of retired generals as potential candidates for legal action.
But his point was that while some accountability action has been taken within the military, the civilian higher-ups are scrambling to avoid the same thing. He mentioned in this connection an executive order by GWB which, in the same order, declared administration officials exempt from any penalties for violating the Geneva Convention, while directing the military to follow it, or else.
He added that we are in a time of "persistent conflict" (kudos to him for NOT calling it the "war on terror") when US troops will frequently be in danger, so one of the things they deserve is a single standard of behavior and accountability, from top to bottom.
So another way of putting this would be: "Support the troops: hold civilian torturers accountable, too!” (As a slogan, that may need some work, but you get the idea.)
#2. Some legislative possibilities.
Much of this came from Rep. Nadler, and it's not entirely clear which things he DEFINITELY plans to introduce, and which ideas are in the "thinking out loud" stage.
First, Nadler repeated the point about how the new administration will come under lots of pressure from many of its "friends" and allies to leave all this accountability stuff alone. (After all, many high muckety-muck Dems are complicit to varyng degrees.) So pressure FOR accountability needs to continue. Nothing new there, but it was good to hear him say it.
As to specific proposals, here are some Nadler mentioned; keep in mind that he did not go into many technical details, and those are mostly above my pay grade anyway, so think about following up with him . And for brevity I'll refer to Nadler as "N" below:
A. Reviving the Special Prosecutor law, which lapsed after the disgraceful Ken Starr impeach Clinton fiasco. N wants to revive it with limits to prevent another unlimited Starr-type witchunt.
B. State Secrets doctrine: he wants to put limits on its use, particularly as a tool for completely shutting down court actions. N said he already had a state secrets reform bill, but didn't mention a bill number or name.
C. Pardon power: N said he plans to offer a Constitutional amendment limiting the president's pardon power, especially regarding high members of the incumbent administration, and to prohibit pre-emptive pardons for persons not yet charged with a crime. Alaso, no pardons could be given in the last 6 months of an administration. There was more, that I didn't catch.
One other call for new legislation came from Elizabeth Holtzman. She noted that the War Crimes Act of 1996 made much of what the current gang did criminal. She said Gonzalez warned GWB about this in a memo that has been uncovered.
So to protect themselves, they put a section into the Military Commissions law which gutted the War Crimes act, and did so RETROACTIVELY so that everything they've done was NO LONGER A CRIME.
(Makes me wanna barf.) This section, she said, was unnoticed amid all the hubbub about habeus corpus. So Holtzman is calling on Congress to repeal that change and REINSTATE the War Crimes Act.
Listening to all this legislative stuff, and weighing all the difficulties it will face, made me think favorably of the idea of shaming the perps, lawsuits, other state-level initiatives, and foreign actions as avenues for folks like us to keep exploring.
