In his article “Justice After Bush,” which appeared in the December issue of Harper’s Magazine, Columbia Law professor Scott Horton argues that the clearest case of criminality in the Bush administration was the use of torture. I would add that this piece of the Bush legacy is also the greatest threat to our nation—the existential threat. As President Obama reminded us after he signed his first executive order and outlawed such coercive interrogation methods, “Our ideals give us the strength.” Our nation is only as strong as the ideas it embodies—justice and human liberty. When due process and civil freedoms are ignored, America no longer exists.
So just over a week into the new administration, with the Guantanamo Bay detention center set to close in a year, I am left wondering what’s next.
Horton offers a clear answer. Last week, I spoke briefly with Professor Horton about his opinion of President Obama’s actions so far. “Law was a nuisance for the previous administration. For this administration, it is clear that the law has a vital role,” Horton argued. He applauded Obama’s first executive order as a dramatic departure from Bush’s policies but noted that the success of the move was its non-revolutionary nature. “[Obama] stated that American law, our own historical doctrine, was good enough,” he said.
But for Horton, restating the law is not enough. When I asked him how to prevent potential lawlessness in the future, Horton replied, “We have a system of legal precedent. If one president gets away with breaking the law, it sets precedent.” Horton believes the only avenue towards prevention is through strengthening the law, and the only way to strengthen the law is to investigate criminal activity and to try lawbreakers.
Therefore, Horton suggests the formation of a truth commission to, as stated in his article, “examine the formation and implementation of policy concerning the treatment of detainees in operations (including intelligence operations) undertaking in connection with the Authorization for Use of Military Force Against Terrorists.” He argues that finding and revealing truth by examining classified documents, issuing subpoenas, and conducting public hearings should be the commission’s primary objective. Any resemblance of a “reconciliation” component would be impossible. This is because, as expressed in Horton’s article, such an investigation would serve as “background for the three most important potential results of a commission: the formal recommendation to pardon, the formal recommendation to pursue prosecution, and the formal recommendation to make reparations.” While Horton’s article lists a few other potential outcomes from the commission’s investigation, such as the rewriting of laws and regulations, he emphasizes criminal prosecution in his recommendation.
But the problem is not only the torture itself but also the fact that we stood by while it occurred. We have a Department of Justice, which was wrongfully politicized under Bush but is, in theory, supposed to enforce and ensure impartial federal law. We have a Committee on Oversight and Governmental Reform with investigative jurisdiction over any federal program.
I agree with Horton that the necessary first step is a truth commission. On Jan. 6, John Conyers (D-MI), chairman of the Congressional Judiciary Committee, sponsored a bill (HR 104) that calls for $3 million to establish a national commission on presidential war powers and civil liberties. This is a good first step in the process of investigation. The Judiciary Committee, charged with handling issues ranging from civil liberties to criminal proceedings, is an appropriate place for such a commission to originate. And it is possible that the commission will conclude that interdepartmental criminal complacency took place, but any commission should move beyond recommendations of prosecution to questions of institution building.
While I understand, as Horton suggested, that a law is not a law until it is enforced, prevention of future lawlessness can take many forms. While any major investigation is underway, the Obama administration, individual executive departments, and Congress can begin to strengthen internal policies and procedures to further solidify necessary checks and balances to keep all officials more accountable.
Congressman Conyers and the House Committee on the Judiciary also published a lengthy report last week detailing the abuses of the Bush administration. Included in the report are suggestions for strengthening government institutions. Conyers recommends that the Department of Justice be more open with Congress. The Office of Legal Counsel (the Office from which the now-famous “torture memo” came) should disclose all of its opinions to Congress. The Justice Department Inspector General must be given greater jurisdiction and independence to investigate internal misconduct. These two recommendations are small but important examples of ways to strength our government’s ability to monitor itself.
Furthermore, on Jan. 13, the Department of Justice published an extensive investigation into its hiring and firing practices that were increasingly streamlined under the Bush administration. We should take their recommendations to make this process more transparent by increasing regulation over the hiring and firing of career lawyers. Other possibilities include increasing the number of positions requiring Senate confirmation to help de-politicize the Department of Justice.
Congress and the president should immediately begin to heed the recommendations from these reports. We should encourage further departmental investigations. As a larger truth commission conducts investigations into specific instances of criminality and complacency, the rest of our government has the responsibility to proactively strengthen its institutions against lawlessness. We do not have to wait for Professor Horton’s ideal of strengthening the law by trying criminals after the fact, but we should work now to open our avenues of monitoring and evaluation.
MaryAlice Parks is a Columbia College senior majoring in history and political science. She is a co-coordinator of Artists Reaching Out. The Albright runs alternate Tuesdays. Opinion@columbiaspectator.com