A slew of lawsuits isn’t hard to imagine. About 750 people have been detained as suspected terrorists at Guantanamo Bay. Thousands more have been held around the world. Many claim they were tortured, and we know from the Bush administration’s own documents that tactics such as waterboarding, stress positions, extreme hot and cold, blaring music and sleep deprivation, and sexual and religious humiliation were all among the tactics used to wring information out of them.

Although the Military Commissions Act tries to preclude lawsuits filed by enemy combatants, many of the people held were never determined to be enemy combatants, or were still held after they were cleared for release. Of the lawsuits already filed against US officials by detainees, none of them were ever deemed enemy combatants. The Second Circuit heard arguments in the case of Maher Arar this week, and lawyers on the other case (Rasul v. Rumsfeld) have asked the US Supreme Court for review. The court will consider the request when it meets on Friday.

Although all sorts of immunities protect US officials from wrongdoing on the job, there’s a strong argument to be made that torture can never be considered part of a government official’s job, so those immunities shouldn’t apply. And the Religious Freedom Restoration Act, which protects against violations of detainees’ religious rights, such as having their Koran flushed down the toilet or being forcibly shaven, is very broad. (That didn’t stop the DC Circuit from dismissing four British detainees’ claims under it earlier this year, though, as I’ve written about before.)

But as I was talking to Carolyn Patty Blum the other day, an emeritus law professor at Berkeley and consultant to the International Center for Transitional Justice, she mentioned that a commission set up to investigate torture and other abuses perpetrated by Bush officials could also recommend, in addition to prosecution, a means by which torture victims can be compensated. Even if Bush were to pardon himself and his officials, a topic of much recent discussion, that wouldn’t shield anybody from future civil lawsuits demanding monetary compensation. But a statute that set up an investigative commission that had the power to, among other things, recommend compensating victims of torture and arbitrary detention, could also protect the US government from some costly future litigation.

“If a commission led to the creation of some sort of process that allows people to clear their name and apply for some sort of monetary compensation for being arbitrarily detained, one of the benefits is it would foreclose the ability for people to pursue another remedy,” Blum explained. “That would be a net gain in terms of cost savings for the new administration.”

Although that’s not the primary reason why Obama should create an investigative commission — Scott Horton at Harper’s has made the case for one quite well — it’s yet another argument in its favor.

On Thursday, House Judiciary Committee Chairman John Conyers, Jr. (D-MI) and Constitution, Civil Rights, and Civil Liberties Subcommittee Chairman Jerrold Nadler (D-NY) wrote to Mukasey asking him to provide the factual basis for that assertion. The letter noted that Mukaseys comments were hard to square with the record of substantial internal objections to these policies, and were inappropriate given that there are several ongoing investigations looking at precisely these same questions.

As the letter reads: “The public record reflects ample warning to Administration officials that its legal approach was overreaching and invalid, such as repeated objections by military lawyers to Department legal opinions on interrogation issues and the stark warning by then-Deputy Attorney General James Comey that the Department would be “ashamed” if the world learned of the legal advice it had given on torture issues. Indeed, FBI interrogators were so troubled by some approved interrogation methods that they refused to participate, as the Department’s own Inspector General has described.”

At a packed forum at NYU Law School last night addressing the same topic, Hofstra law professor and Harper’s contributor Scott Horton offered that Mukasey is trying to “bait Obama into saying that there won’t be prosecutions, we’ll let bygones be bygones.”  Obama is not likely to take that bait, though.

Indeed, Obama and his transition team have been so tight-lipped about what they’ll do about crimes committed under the Bush administration, and Bush has been so elusive about what he might do on the pardon issue, that it had led to all sorts of energetic speculation on the subject. Much of this debate was on display at last night’s forum, which attracted several hundred attendees and left dozens more outside and clamoring to get in.

While Horton reiterated his call for a commission to investigate, which he laid out in detail in this month’s Harper’s, Michael Ratner, president of the Center for Constitutional Rights, insisted a commission is too slow, complicated and prone to coverups, and only a special prosecutor can do the job. Nadler, also on the panel, seemed to advocate for both, while NYU law professor and Brennan Center legal director Burt Neuborne suggested the more conciliatory truth and reconciliation commission approach, which would expose but not prosecute abuses, should also be considered.  But as Ratner responded, citing a comment recently made to him: “Imagine if at Nuremberg we had had a truth commission and not a prosecution?”  Doesn’t really have the same historical impact — or deterrent effect.

Elizabeth Holtzman, the former congresswoman and author of the book, “The Impeachment of George W. Bush,” warned that “If we don’t act to address this problem,” referring to executive lawbreaking, “we will be beset with this problem again and again.”

General Anthony Taguba, the retired military general who wrote the scathing 2004 report on Abu Ghraib, calling the conduct there not only “sadistic” but “criminal,” also made some interesting points. He noted, in carefully tempered remarks, the disconcerting fact that the the government passed laws protecting senior government officials from prosecution, then directs soldiers in the military to follow the Geneva Conventions and international law. What kind of a message does that send to our troops?

All in all, a convincing set of arguments that ultimately weigh in favor of both a special prosecutor to investigate specific instances of criminal wrongdoing, and an investigatory commission to look more broadly at how the Bush administration went down this path in the first place and how to keep it from happening again.

As Neuborne noted, employing his usual eloquence (as I recall from the days when he was my fed courts professor), “we have a panic button in the Constitution” that has led to constitutional transgressions by US officials during wartime far too often in American history.

Something must be done – whether in the form of criminal prosecutions, truth commissions or perhaps lawsuits for civil liability and monetary damages — to deter government officials from pressing that button so reflexively in the future.