A Special Prosecutor to Investigate Torture?

For the last week or so, we've seen stories about the possibility of Attorney General Eric Holder appointing a special prosecutor to investigate torture and human rights abuses committed under the Bush administration. The reports have often conflicted on the details and scope of these possible investigations – perhaps they're trial balloons, and perhaps some of the insiders talking to the reporters are trying to influence things.

We'll see how this develops, although the usual suspects have some good pieces on it: Glenn Greenwald, Emptywheel, Crooks and Liars, the Hullabaloo crew and Obsidian Wings. Newshoggers has a few posts on Cheney's assassination program, and you can find many more posts on that at the above sites and around the web. Details are still unclear, but it's all part of a continuum of abuse of power and a contempt for oversight. Meanwhile, Brad Blog rounds up some information and has some petitions on the special prosecutor front.

Unsurprisingly, Scott Horton has a valuable perspective on all this, particularly the conflicts in the accounts:

For what it’s worth, I share Greenwald’s view that a criminal investigation that focuses entirely on CIA agents who failed to “toe the line” in applying techniques would be an utter travesty. It would in effect be “Scapegoat the Grunts, Round II.” I also think it is clear that Holder will not charge a special prosecutor to go after senior political figures. That would be both politically destructive and inconsistent with legal and ethical guidelines. He will charge the special prosecutor to investigate the underlying allegations of crime.

In that sense, [Washington Post reporter Carrie] Johnson’s statement is correct. But it’s also misleading. As soon as the special prosecutor gets into the facts relating to the use of the Bush-approved techniques, he will deal with the claims of interrogators and deeply implicated contractors like James Mitchell and Bruce Jessen that they were acting under instructions from higher up the chain and in accordance with guidance delivered by senior CIA officials and political appointees, both oral and written. The special prosecutor will have to examine the bona fides of these claims and investigate the guidance that was given and whether it comported with law. In other words, the conduct of Bush Administration officials may well not be implicated in the specific tasking document issued by Holder, but it would be raised by way of affirmative defense by the interrogators and contractors. The special prosecutor will not be able ultimately to avoid looking at these questions if he or she pursues the job credibly. And if Holder were to direct that certain individuals are immune from review by the special prosecutor, he would make the entire exercise into a travesty. The inference that higher-ups won’t be caught up in the investigation is, in my view, unwarranted.

A further word of caution: the fact that a prosecutor is appointed doesn’t mean that indictments will follow. To the contrary, it reflects the well-reasoned judgment of the attorney general that, given the focal and highly conflicting role Justice played in the whole affair, the decision about whether to bring charges needs to be exercised by a person who was divorced from all these facts. I also think Holder should select someone with gravity who would enjoy the respect of prominent Republicans, and that such a person is highly unlikely to rush to bring charges against senior political figures. Indeed, as I note, the path to bringing charges is extremely complicated, and it is far from clear that the process, fairly followed, will produce charges.

Emptywheel (linked above) has a similar take. (Horton also has a good piece on the Cheney assassination program, and Cheney hiding it from Congress.)

Balloon Juice has been following the day-by-day accounts on Holder very well. John Cole nailed it when he wrote:

I was listening to NPR yesterday, and one analyst stated that the reason Washington is terrified to investigate this is because they know that so many laws were broken so flagrantly that any investigation will lead to the indictment of Bush and Cheney, and that, for obvious reasons, terrifies the Democrats (you can listen to that piece here). It would simply consume Washington and destroy Obama’s agenda, and they want to avoid that at all cost. Holder, on the other hand, may not give two hoots about Obama’s agenda and the delicate sensibilities of the Democrats, and go after them anyway.

I’m not sure what the point of Obama even having an agenda if they don’t go about holding people accountable for what they have done here. Otherwise, we’ll just be going through this again in the future.

I’d also like to point out to everyone that Bill Clinton was impeached over a blowjob.

Exactly right, and many of us have made similar points. The key problem with investigating these abuses is that anyone who's followed the story knows where this all leads. Plenty of details still aren't known, but the basic outline is, and what's already come out is absolutely damning, and compels further investigation. The timeline alone shows these abuses were committed in bad faith, and if the law is actually followed, many Bush officials will be on trial for war crimes. For goodness' sake, a bipartisan Senate report (featuring some very conservative members) found that the Bush administration tortured to produce false evidence to justify our unnecessary war with Iraq. There's a special place in hell for that, and it's understandable why facing these abuses would make some tremble, because it's staggering. But it's perilous to condone the cognitive dissonance or corruption that says somehow, this sort of conduct will magically cease, especially when many of its perpetrators are publically insisting they were right, and they'd do it all again. Almost all Beltway chatter is working from their conclusion – an investigation can't be allowed to happen! – backward. This is extremely dangerous.

The law requires that AG Holder investigate any credible allegations of torture, and we clearly have that at the very least. As Horton points out, what specifically should be done with these people is another matter. Holder is supposed to make decisions independent of the Obama administration's wishes, but reality is another matter. Petitions may help, but unlike members of Congress, Holder is not an elected official and not directly accountable to the public. The law's clear. Ultimately, though, this comes down to Holder and his conscience.

Similarly, the problem with media coverage is simply a failure of nerve. Greenwald's been the most tenacious about documenting media outlets' refusal to call torture torture. Take NPR, for just one example. I've been frustrated by them not using the word "torture," as the facts show they should. I was encouraged to hear an NPR story about a month or two ago that finally addressed the timeline and pointed out that the good faith defense didn't make sense (the OLC memos "authorizing" torture were issued after the torture started). However, a more recent NPR story, not that bad overall, treated the good faith issue as an completely open question again. It's maddening. Look, I fully understand that a news organization has to hedge somewhat, and it would be irresponsible to say "These bastards are guilty, guilty, man!" There has to be an investigation. However, an accurate, objective story would explain at the very least that Bush officials claimed everything was done in good faith, but that the timeline contradicts this, so something doesn't add up. It would further point out that the law requires the AG to investigate credible allegations, and might even point out that the United States has prosecuted similar abuses in the past as criminal acts or war crimes. Contrary to the stance of authoritarian conservatives, following the law and investigating the truth are not partisan acts. (Also, if they were telling the truth, as they self-righteously insist, it would exonerate them.)

A congressional investigation would not preclude one by the Department of Justice (by itself or through a special prosecutor), but the biggest danger would be immunity handed out recklessly, as occurred with Iran-Contra and undercutting Lawrence Walsh's investigation (George H.W. Bush's pardons completed the cover-up). I'm not hopeful about jail time for the perpetrators, but ya never know. The key thing would be establishing an official timeline, the illegality of these actions, and their ineffectiveness. The big danger with a bad congressional or DOJ investigation is that it will whitewash things, although Horton and Wheeler make good cases. Personally, of all the many horrible abuses of the Bush administration, I find torture the most abhorrent and inexcusable - and the most dangerous not to address. Bloggers on the human rights beat will keep pushing, and at the very least keep working on that timeline and the public record. A couple of forthcoming reports will further help.

I'll link once again Marcy Wheeler's "The 13 people who made torture possible," which is a good introduction and overview. Her detailed timeline is also invaluable. I've written a fair amount on these issues, but "Torture Versus Freedom" is probably the most comprehensive. And don't forget to check out the petitions linked above. Every little bit helps.