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Prosecutor: Good Case Against Torture More Important Than Speed

Sarah's picture

Because, as she points out, unless we WIN we don't accomplish anything. This is why I think you need to hear her out:

First, the bottom line: From the perspective of anyone who wants Bush and Cheney and their top aides to be held accountable for their crimes, the designation of some sort of independent prosecutor right now would be the worst possible eventuality. It's a move that has so many downsides - and holds so few real benefits - that I would be more inclined to question President Obama's motives if he appointed a special prosecutor than if he did not. There is a reason why former prosecutor Arlen Specter - a Republican senator from Pennsylvania - has voiced support for a special prosecutor, while former prosecutors Patrick Leahy and Sheldon Whitehouse - Democratic senators from Vermont and Rhode Island, respectively - would prefer a public inquiry.

What is it? Well, for starters, there is - under currently available US law - no such thing as a truly independent prosecutor. There has not been since 1999, when the independent counsel statute expired. Accordingly, regardless of the title given this individual - and whether she were tapped from inside or outside the Justice Department - this appointee would, at a minimum, be required to follow internal DOJ policies and her delegated authority could be revoked at any time. (The regulations that authorize appointing a non-DOJ attorney as "special counsel" - found at 28 C.F.R. Part 600 et. seq - actually make possible substantially more attorney general oversight into prosecutorial decisions.)

Under existing federal law, in other words, the notion of a special prosecutor who would be entirely free from political and institutional influence is illusory. Given that fact - and that it is ordinarily an extremely dumb, not to mention unethical, idea to announce investigations - when an administration does announce that it is naming a "special counsel" of any sort, it is largely a public-relations maneuver. The president thereby appears to be committed to the rule of law, but is, in fact, parking an extremely inconvenient problem in a remote and inaccessible lot

I'm one of the people who thought Ken Starr abused his authority and wasted taxpayers' money and our time in his relentless pursuit of Bill Clinton. The Congress let the special prosecutor legislation expire and I was glad.

The law of unintended consequences strikes again.

Yet we can and must not let torture go unpunished. Ms. de la Vega's column discusses exactly how the w administration turned us into something other than the United States of America. Unless and until we hold the architects of that transformation not merely accountable but responsible and subject to the rule of law, we cannot recover -- no matter what we may manage instead -- our essential and defining characteristics.

But we mustn't be sloppy or speed to a false end to the matter, lest we further undermine the kind of nation we want to belong to. It was, after all, the Watergate investigation that ultimately brought us Ken Starr.

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pie's picture
Submitted by pie on

if they are really interested in pursuing this, have had lots of time to figure out legal strategy. Some in the group are actually lawyers.

I don't care how they do it, but they'd better do it, and it had better be sooner rather than later.

I'm not interested in these little sidebars and bits of advice from the peanut gallery.

Submitted by Paul_Lukasiak on

This is poppycock.

Obama is going out of his way to not prosecute anyone for the crimes of the Bush administration -- making whole categories of criminals non-prosecutable by executive fiat. The reason that there is a need for a special prosecutor is created by Obama's own actions -- only someone with considerable independence from Obama's political calculations can be relied upon to make the appropriate choices about who should be offered 'amnesty' for their co-operation in the investigation, who should be permitted to plead guilty to lesser charges, and who should be prosecuted to the full extent of the law.

bringiton's picture
Submitted by bringiton on

Remember when President Carter issued orders that Vietnam War draft evaders would not be prosecuted any longer and then imposed a blanket pardon, thereby making criminals non-prosecutable by executive fiat? Remember when President Obama issued orders that federal agents will no longer raid marijuana clinics in states where medicinal use is legal, thereby making criminals non-prosecutable by executive fiat? Those decisions to not prosecute were welcomed by many on the Left, while being decried by many on the Right, the exact opposite of the positions held on the question of prosecuting for torture. It appears that approval or condemnation of the use of executive fiat is situational, depending on whose ox is saved from being gored.

Decisions on who to presecute and who not, both as individuals and by category of crime, happen all the time in our justice system. Globally, the term is prosecutorial discretion and it has a long and complex history. Obama's attempts at slicing there and dicing here on the matter of criminal culpability for torture are neither unusual in and of themselves nor are they outside the bounds of his promises as a candidate.

He promised to end the torture regime, and he has done so. He promised to close Gitmo and "black sites" prisons and he has ordered that process to begin, with a deadline for completion. He also said that he wasn't interested in spending his time on prosecutions for "policy" matters, and he is keeping that promise as well. Expect him to continue to keep his promises, whether they anger the Right or the Left.

What he hasn't promised is that everyone involved in the conduct of torture will be protected from prosecution, or that they will be pardoned if tried and convicted. All of those options - investigation, charging, trial, conviction and prison - are still available. No "fiat" has been implemented, one way or the other, regarding any one or any thing having to do with torture.

The manner of the release of the torture memos is instructive. Obama could have appealed the court order, tying up the process for months if not years, or simply refused to comply - yet he did neither. He could have redacted the most damning passages, but instead released them with very little blacked out. In releasing the memos in near-entirety, Obama facilitated the pursuit of torturers and those who conspired to torture without allowing himself to be blamed for it by the public, and without paying a heavy political price.

Current public opinion appears to be split about evenly on whether or not there should be prosecutions for torture - of anyone involved. So long as that remains the case, don't expect a rush to prosecute from the Obama administration. Expect instead a steady drip-drip-drip of disclosures, more memos and more records in addition to those already released. Expect also that congressional investigations will start up, very soon, to follow up on both the torture memos and the Senate Armed Services Committee Inquiry Into The Treatment Of Detainees In U.S. Custody". These investigations will fill out the picture of corruption and abuse, and tie the crimes directly to the very top of the Bush Administration where they belong. They will do so without the need for Obama to comment one way or the other, or to direct anyone to do anything. The process will move forward while Obama tends to other matters, as he said he preferred to do.

If public outrage increases, prosecutions will follow. If the public instead decides that prosecutions are not worthwhile, as was the case after Nixon and Watergate as well as after Reagan and Iran-Contra, then likely there will be no prosecutions of higher-ups. Public opinion will ultimately decide the extent of judicial discretion in these matters, as ought to be the case in a democracy.

Contrary to claims, Obama has certainly not exercised any sort of executive fiat to block prosecutions for torture. But while he has kept open the door to prosecutions, he will not take the lead. Since prosecuting for torture means that his administration, and he himself, will be attacking and threatening with prison not just all of the senior members of the previous administration including the president and vice-president but also the whole of the CIA and NSA security apparatus and the entire senior command of the United States military, it would be extremely wise of Obama to not take the point on this process until public opinion in favor of prosecution becomes overwhelmingly irresistable. For conspiracy buffs, those who for instance still see the hand of the CIA in the Kennedy's assassinations, a bit of discretion on Obama's part should be especially understandable.

This process isn't about "make him do it." It is about whether or not the the majority of people of the United States want to prosecute. If they do, then the prosecutions will inevitably happen. Absent a majority demand for prosecutions, however, they will likely not happen. Public opinion is where those favoring prosecution need to focus their persuasion, not on Obama.

okanogen's picture
Submitted by okanogen on

Could you tell me how many prisoners have been released from Guantanamo since Obama was sworn into office 3 months ago? Do you know how many are left?

Thanks!

okanogen's picture
Submitted by okanogen on

"He promised to close Gitmo and "black sites" prisons and he has ordered that process to begin, with a deadline for completion."

Since you know how this all works I'm just wondering if you could expand on how his progress is going toward that deadline for completion. It is relevant to your point since you say he does exactly what he promises.

Can you answer the question or not?

bringiton's picture
Submitted by bringiton on

thanks anyway. You, of course, are free to research to your heart's content if you feel the topic is worth your time. The issue of what constitutes a reasonable time scale for closing Gitmo has already been exercised here. I do not see any value in repeating that discussion absent new substantive information.

Try Google or whatever search engine thrills you to look up more about Obama's decision to close the Gitmo prison and the process he's undertaken. Read away. We should be seeing public release of the early results of the initial evaluation sometime in May, and I have no expectation of seeing anything any sooner since the review is being conducted under national security restrictions. Do you have some reason to believe that there will be earlier results, that some information has already been released? No, didn't think so.

Obama said he'd close the prisons. He's ordered them closed within a year. He's ordered an investigation independent of BushCo's into the prisoners, in order to determine their status and facilitate release of those who can be let go and define a path to trial for those who should be prosecuted. Seems reasonable and prudent to me, to the ACLU, and to many others. The timeline for that evaluation is three months, a time period that has not yet expired. Obama has kept his promise on this matter in the actions he's taken so far, and he has done nothing to pull back from or evade his promise.

As to the exact number of prisoners and number released in the interim, Sarah already provided an answer. My response to your question is: So what? Why do you ask? To get a number that you could obtain for yourself in a matter of minutes but would rather task to someone else? Or do you have some other agenda, some greater issue you'd like to discuss? What does it mean, these numbers? Is the question random, or are you trying to make some intelligible point?

If your point is that I don't have access to top-secret internal government investigations, then you are right, I don't. Or maybe I do, and just deny having the access. Either way, you'll never know by asking - will you?

okanogen's picture
Submitted by okanogen on

Instead with the essays.

Essays with out of date (inoperative?) facts and speculation. You provided a link from January 21st where you proudly declare we will see action in three months on Guantanamo. Today is March 23rd, over three months later. Where is the action?

No need to go on some research assignment. If you are going to write a check (either now or then), be able to cash it or admit you can't. It is not my job to put money in your account or cash your check for you.

Damon's picture
Submitted by Damon on

But, now you've learned that brevity is not the soul of his wit, if he's ever witty, at all. I'd advise you not to even deal with him at all save for the rare times when he actually wants to engage you honestly in discussion. Otherwise, you're simply wasting your time.

Submitted by lambert on

This question is crystal clear:

Could you tell me how many prisoners have been released from Guantanamo since Obama was sworn into office 3 months ago? Do you know how many are left?

I'll just take your non-answer as a No.

bringiton's picture
Submitted by bringiton on

filling in both sides of a conjured conversation to build an artificial narrative that presumably suits some end of your own. Once again you posit motive and dialogue that have nothing to do with me. Why is of no interest to me, so no need on my part for you to explain.

I'm perfectly capable of having a conversation all on my own. And I'm also capable of recognizing bait when it is dragged in front of me. I asked for clarification, got it (see above) and have responded (see above).

Thanks awfully though for volunteering to act as facilitator; really isn’t needed at this point.

Sarah's picture
Submitted by Sarah on

the masters and architects of the torture. Bringiton, did you happen to see the Begala-Fleischer 'debate' on Anderson Cooper's broadcast? If I can find a video I'll post it.

I do think those of us who want the US of A back are going to need to continue to make a lot of noise about it. Today's news (CFO of Freddie Mac suicided?) will distract.
The President appears to be focused more on the economy than other issues, at least for now. I wonder how much of that is camouflage?

Full disclosure: I read Oliver North's testimony in the (probably ghost-written) book that came out during the Iran-Contra hearings. I have a pretty fair memory; I also recall that the guy he claimed inspired him to buy that heavy-duty home security system was not the guy we heard about during the 2004 campaign as "the most dangerous terrorist on earth". Wasn't bin Laden, for damn sure. Might've been Abu Nidal, IIRC. (Gave the book to Goodwill years ago)

bringiton's picture
Submitted by bringiton on

That is what we need. The revelations just keep coming, with the Senate report now documenting direct authorization of torture by both Cheney and Condi Rice, and disclosing the real purpose of all this torture to be ginning up false testimony about some link between 9/11 and Iraq. More will come out, and everything will make BushCo look undeniably bad bad bad. Hopefully, the pressure to launch a formal DOJ investigation will eventually be overwhelming and by then the amount of evidence out there will make charging and convicting at least possible.

Don't watch CNN very often so I missed that Paul v. Ari exchange. Thanks for the heads-up; I'll go see if I can find it myself, no need for you to track down a link. The last time I saw Anderson Cooper was with Kathy Griffin on New Year's Eve. My kind of comedy.

Tracking the outcome of the last couple of Republican presidential meltdowns, should we expect John Yoo to end up with his own nationally syndicated radio show like Ollie North and G. Gordon Liddy?

Sarah's picture
Submitted by Sarah on

I think we're a couple, maybe three weeks, away from announcements from AG Holder on the disposition of the Guantanamo detainees.

I don't mean to create or amplify a conflict, but I'm not going to be happy if the whole of Bushco -- Yoo, Rice, Cheney, Rumsfeld, Bybee, w, the lot of 'em -- don't end up in chains before the Hague.