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:

Visit msnbc.com for Breaking News, World News, and News about the Economy

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.

Share
Single Page

More from Scott Horton:

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2016

The Origins of Speech

= Subscribers only.
Sign in here.
Subscribe here.

Four in Verse

= Subscribers only.
Sign in here.
Subscribe here.

A Sigh and a Salute

= Subscribers only.
Sign in here.
Subscribe here.

Four in Prose

= Subscribers only.
Sign in here.
Subscribe here.

Don the Realtor

= Subscribers only.
Sign in here.
Subscribe here.

Atlas Aggregated

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Martin Amis on the rise of Trump, Tom Wolfe on the origins of speech, Art Spiegelman on Si Lewen, fiction by Diane Williams, and more

In Havana, the past year has been marked by a parade of bold-faced names from the north — John Kerry reopening the United States Embassy; Andrew Cuomo bringing a delegation of American business leaders; celebrities ranging from Joe Torre, traveling on behalf of Major League Baseball to oversee an exhibition game between the Tampa Bay Rays and the Cuban national team, to Jimmy Buffett, said to be considering opening one of his Margaritaville restaurants there. All this culminated with a three-day trip in March by Barack Obama, the first American president to visit Cuba since Calvin Coolidge in 1928. But to those who know the city well, perhaps nothing said as much about the transformation of political relations between the United States and Cuba that began in December 2014 as a concert in the Tribuna Antiimperialista.

Illustration by Darrel Rees
Article
Don the Realtor·

= Subscribers only.
Sign in here.
Subscribe here.

"If you have ever wondered what it’s like, being a young and avaricious teetotal German-American philistine on the make in Manhattan, then your curiosity will be quenched by The Art of the Deal."
Photograph (detail) © Polly Borland/Exclusive by Getty Images
Article
The Origins of Speech·

= Subscribers only.
Sign in here.
Subscribe here.

"To Chomsky...every child’s language organ could use the 'deep structure,' 'universal grammar,' and 'language acquisition device' he was born with to express what he had to say, no matter whether it came out of his mouth in English or Urdu or Nagamese."
Illustration (detail) by Darrel Rees. Source photograph © Miroslav Dakov/Alamy Live News
Article
A Sigh and a Salute·

= Subscribers only.
Sign in here.
Subscribe here.

"Si told me that various paintings had spoken to him, but he wished they had been hung closer together 'so they could talk to each other.' This observation planted a seed that would come to fruition years later in his mature work."
Artwork (detail) by Si Lewen
Article
El Bloqueo·

= Subscribers only.
Sign in here.
Subscribe here.

"Amid the festivities and the flood of celebrities, it would be easy for Americans to miss that the central plank of the long-standing cold war against Cuba — the economic embargo — remains very much alive and well."
Photograph (detail) by Rose Marie Cromwell

Percentage of registered Democrats who say that fishing is their favorite spectator sport:

1.8

Democrats would win more elections if black Americans died at the same rate as white Americans.

A former U.S. intelligence official said pornography constituted 80 percent of the material on jihadists’ seized laptops, and Starbucks and McDonald’s made porn inaccessible from their Wi-Fi networks.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Mississippi Drift

By

Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'

Subscribe Today