Among other things, Ratner suggested that the subcommittee should subpoena “all of the documents, including emails, that surrounded their [the OLC memos'] writing.”

The committee could then “subpoena all those who wrote those emails or had conversations with the OLC lawyers about those memos both before or after they were written. That context might well demonstrate that the memos were not written in good faith and were shaped to fit the torture policy.”

Sounds like a good start.

The Inter-American Commission, an arm of the Organization of American States — of which the United States is a member — normally sits in judgment of countries like Argentina and Chile, whose histories of torturing and “disappearing” political opponents and committing war crimes are notorious. But there were the commissioners, from various Latin American countries, listening to the arguments of Center for Constitutional Rights President Michael Ratner and ACLU human rights program director Jamil Dakwar, that the Bush administration had enacted laws and taken steps in litigation to shield itself from accountability for such crimes — and so far, the Obama administration had not changed those policies.

In particular, Ratner was talking about provisions of the Military Commissions Act of 2006 that provides immunity for Bush administration officials who authorized torture of military combatants, violated the Geneva Conventions or otherwise broke the law on the advice of government lawyers. He also cited the positions that the Bush and Obama Justice Departments have taken in seeking to dismiss cases on the grounds that they would expose “state secrets” or otherwise interfere with executive powers.

Dakwar recounted the story of German citizen Khaled el-Masri, an ACLU client who claims he was tortured at a CIA “black site” but whose case was dismissed because of that “state secrets” privilege.

And both lawyers argued that a truth commission, along the lines of one proposed by Senator Patrick Leahy (D-Vt), if it provided immunity and foreclosed prosecutions would never be an adequate substitute for criminal prosecutions, which they argued are critical to holding the United States accountable for violations of international law.

“That’s the way to demonstrate that those violations will not be tolerated and wil not be repeated,” said Ratner. “Otherwise what you’re faced with is impunity … A commission can’t be used as a substitute for criminal liability.”

Lewis Amselem, the U.S. representative to the commission, for his part, respectfully listened to the list of charges and nodded. He responded with his own list of all the pronouncements the Obama administration has made about closing Guantanamo, ensuring the prison meets Geneva Conventions standards, and reviewing the cases of every detainee to facilitate their eventual transfer. He didn’t defend any of the particular provisions of the Military Commissions Act or the legal positions of the Justice Department as described, but promised to bring the concerns back to the State Department. He promised to report back to the commission with the administration’s policy on a truth commissions, as well as to answer questions from the commissioners about how many Americans have been prosecuted for torture in military and civilian courts.

Ratner, however, was ready with the answer:  “None.”

Although there have been cases brought through the military system charging assault of prisoners, only lower level military people at Abu Ghraib were charged, “under the theory of the Bush Administration that this was not a policy or practice of the United States, it was just a few bad apples.”  Prosecutors “only had authority to look down the chain of command, not up the chain of command,” said Ratner.

While the commission’s rulings are not binding, it has authority to make recommendations to the U.S. government. Lawyers involved said they expected those to be issued within the next few weeks.

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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.