Nadler Proposes 3 Bills for Accountability

On Thursday, Rep. Jerrold Nadler joined an all-star panel called "After Torture: A Forum on justice in the post-Bush era" organized by Harper's Magazine and The Center on Law and Security at NYU School of Law.

Nadler said "accountability is one of the most important questions before our country." He said we need to "prevent future recurrences," and "in a just society, we must do justice and be seen to do justice."

He said "we don't know what Bush will do about pardons," but he introduced H.Res. 1531 to send a "shot across the bow" of the White House. H.Res. 1531 urges Bush not to pardon officials in his administration, calls for additional Congressional investigations, and recommends a Special Prosecutor.

Nadler said "President Obama will be faced with a lot of pressure not to prosecute Bush's crimes, and he may succumb." Nadler supports both a Truth Commission and prosecution, but said a Truth Commission "is not enough" because Commissions can be abused to coverup up important facts, as the 9/11 Commission did.

Nadler then made news by outlining three bills he plans to introduce.

1. A Special Prosecutor Bill: This would revive, with a key modification, the Special Prosecutor law that was repealed by Congress after Ken Starr's abuses. Nadler explained how his formal requests for a Special Prosecutor to investigate Bush's warrantless wiretapping were ignored by Attorney General Alberto Gonzales in 2005 and later Michael Mukasey. To avoid such brushoffs, Nadler's bill would give Congress a way to ask a judge to appoint a Special Prosecutor. But to avoid a repeat of Ken Starr, he would limit the law to "crimes of state" like abuse of power, not "personal crimes" like domestic violence.

2. A State Secrets Bill: Nadler introduced this bill in 2008 and hopes to get it passed by Congress. He described how lawsuits by victims of Presidential abuses like torture and wiretapping have been blocked by the Department of Justice with "state secrets" claims. Nadler said "Constitutional rights without a remedy are not rights at all." His bill sets strict rules for handling state secrets, limiting its use to individual pieces of evidence, not to whole cases.

3. A Constitutional Amendment to limit Presidential pardon power: Nadler said this would not affect George Bush, but would prevent similar abuses in the future. Nadler's Amendment would set three rules for pardons: (a) no pardons for official acts authorized by the President, (b) require convictions before pardons, and (c) prohibit pardons in the last 6 months of a President's term.

These three bills represent a significant step towards Presidential accountability and Democrats.com will actively support them.

Update 1: Nadler's proposed Constitutional Amendment was noted by Talking Points Memo. Josh Marshall reacted skeptically:

in addition to always being leery of fiddling with the constitution, I don't know if I like the idea of changing the pardon power. I think it's an important safety valve in our constitutional system. If it's been a problem, rather than changing the constitution, maybe we need better presidents.

That's facile and dumb. As Bush already demonstrated in the Scooter Libby case, a President can defy the Constitution with impunity simply by pardoning those who carry out his criminal instructions. There's no good way for voters to know what a President will do in advance, and the Constitution cannot rely on a President's oath of office - or on a 2/3 majority in the Senate to impeach him if he doesn't. The Founding Fathers intended pardons to be used for mercy, not to protect a lawless dictator and his henchmen from prosecution.