No Comment — August 11, 2009, 10:14 am

Special Prosecutor on the Horizon?

Last night I discussed the latest reports about the pending appointment of a torture special prosecutor with Keith Olbermann. Here’s the video:

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Here’s another question. According to the Los Angeles Times, “Officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo. ‘A number of people could say honestly, correctly, “I didn’t know what was in it,”‘ said a former senior U.S. intelligence official.” How would that affect the work of a special prosecutor?

The Times piece builds off accounts furnished by “former senior Justice officials,” close to the torture issue, with apparent knowledge of “investigations.” In all likelihood, we’re talking about Bush Administration political appointees apprehensive about what a special prosecutor might uncover. I would strongly discount the claims that the investigations will never go anywhere because of a lack of witnesses and evidence. That conclusion can’t be justified until a serious investigation has actually been conducted—and it’s clear that the Bush Justice Department did not conduct a serious investigation because they were concerned about where it might lead.

The current focus on the OLC memos is a bit absurd. It’s clear that torture went on before the memos were written, and that the memos were written, and later revised, to match the practices that were actually used. In the end, however, interrogators suspected of “crossing the line” will argue that they were relying on legal interpretations, and they may in fact have valid statutory defenses of reliance on legal advice. But that’s not the case for the memo writers and other policy-level figures at the CIA, Justice, and at the NSC. This points to torture as a joint criminal enterprise, which is how it is generally investigated and charged. Any proper investigator would quickly move his focus from the interrogators–who have plausible legal defenses–to the policy-makers and memo writers, who don’t and who are more culpable legally, if we apply the standards used by prosecutors from Nuremberg to the Yugoslavia and Rwanda tribunals.

If Eric Holder decides that the appointment of a special prosecutor is warranted, then he should focus his energy on picking the best person for the job. He needs a person of unchallenged integrity who has a record of effective prosecution and can be counted on to put the law ahead of politics. Any effort by this highly compromised Justice Department to put a straightjacket on the special prosecutor or to shield certain individuals from scrutiny will delegitimize the process. Indeed, no serious prosecutor would accept an assignment that was subject to such constraints. Holder should have faith in the process to deliver a fair and just result, and he should avoid any efforts to jury-rig it. How he responds to this challenge will reveal if he is a man driven by law enforcement concerns or a politician at the helm of the Justice Department.

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