No Comment — June 29, 2010, 4:33 pm

Patrick Fitzgerald, Torture Prosecutor?

U.S. Attorney Patrick Fitzgerald can claim an important victory. The Associated Press reports:

A decorated former Chicago police lieutenant accused of suffocating, shocking and beating confessions out of scores of suspects was convicted Monday of federal perjury and obstruction of justice charges for lying about the torture. Former Lt. Jon Burge, whose name has become synonymous with police brutality and abuse of power in the country’s third-largest city, did not react as the guilty verdicts were read.

A federal investigation concluded that more than 100 victims had been tortured, sometimes brutally, by Chicago police, especially on the city’s South and West Sides, in incidents dating back to the seventies. Although allegations were frequently made, they were routinely batted down by prosecutors as nonsense until students at a clinic at Chicago’s Northwestern University Law School began rigorously documenting the allegations. When Illinois Governor George Ryan ordered a moratorium on executions out of concern over the torture allegations, he found himself the target of a corruption inquiry by local prosecutors, who also took extreme measures to intimidate the law students investigating the torture allegations.

Chicago prosecutors, it seems, were eager to protect the police—and themselves—from the allegations of torture now validated by a Cook County jury. They used all their prosecutorial powers to interfere with and block probes, and sought to criminalize their critics.

Patrick Fitzgerald seems to have acted differently:

U.S. Attorney Patrick Fitzgerald said “a message needs to go out that that conduct is unacceptable” and asked others who feel they have evidence of torture to come forward. He wouldn’t comment on specific cases but said the investigation into torture at the hands of Chicago police remains open, hinting at the possibility more former officers could be charged.

Does Patrick Fitzgerald really believe what he told the Associated Press? We’ll know soon enough. But there’s reason to believe that his political instincts aren’t substantially different from those of the Illinois prosecutors who used their powers for years to cover up the evidence of wrongdoing in the city’s police stations.

Fitzgerald is also special prosecutor in an investigation into the involvement of CIA agents in the torture—and occasionally the torture-homicide—of prisoners held in the war on terror. Amazingly, however, rather than the allegations of torture, Fitzgerald is going after the efforts of private investigators, working under the instructions of counsel for the prisoners who were on the receiving end of these techniques. The preposterous theory on which Fitzgerald’s inquiry is premised is official impunity taken to a wild extreme—CIA officers argue that their identities and their involvement in the torture episodes are matters of the highest secrecy, and any effort to learn the facts about them is a crime. In other words, just like the Cook County prosecutors who sought to harass and criminalize those who investigated torture in Chicago, Patrick Fitzgerald is being charged to harass and criminalize human-rights investigators who have probed the use of torture techniques by CIA agents.

In Mother Jones, Nick Baumann and Daniel Shulman look at the critical role played by John Sifton, a lawyer and the son of recently deceased legendary federal judge Charles Sifton, who spearheaded the investigation for the victims’ counsel.

the goal of [the] surveillance effort was to allow defense lawyers to provide photo lineups (containing random people as well as CIA personnel) to their clients so they could pick out officers who had interrogated them, enabling lawyers to call the interrogators as witnesses. “Proving torture is crucial to the defense,” says Joanne Mariner, the director of Human Rights Watch’s terrorism and counterterrorism program. “The way to prove it ideally would be to get the torturers in the courtroom.” Sifton’s firm would figure out the real names of the suspected interrogators, then look for photos of them online. For a few, no pictures could be found, so One World Research set out to track the officers down and take pictures…

It remains unclear whether, by giving detainees what sources describe as photo montages containing pictures (but not names) of CIA officers, the John Adams lawyers breached any disclosure rules. If a violation occurred, say former military lawyers at Guantanamo, it’s likely because in the alternate justice system created by the Bush administration, it was difficult to tell what was and wasn’t allowable. “I had a full time job just…fighting to verify what the rules were,” says Col. Steve David, the first chief defense counsel at Gitmo, who recalls once being informed that every word uttered by a high-value detainee was considered a state secret.

CIA officials say they fear being identified and targeted by terrorists. But the more obvious fear lurking in the background is fear of arrest and criminal prosecution.

Another former high-ranking intelligence official explains, “This is an agency that has reasons to be concerned as to whether or not somebody’s got their back. It’s always operating out there on the edge, not unlawfully, but generally at the farthest reaches of executive prerogative.”

Actually, quite a few CIA agents are already prepared to acknowledge that the torture and “disappearings” that were a staple of CIA operations in the Bush era crossed the threshold into the realm of criminal conduct. We need only look to the conviction of 21 CIA agents by a court in Milan last year, to the pending arrest warrants issued against 13 CIA agents by Spanish criminal investigators, and to pending criminal investigations in Germany, Britain, Spain, and Italy, all of which target CIA torture and black site operations. Concern about the arrest and conviction of further CIA agents is very real, and evidence laid down in U.S. courts has in the past regularly fueled the foreign criminal investigations.

It’s almost impossible to imagine the Fitzgerald investigation coming to criminal charges against the investigators of the torture episodes—a prosecution that would contradict basic notions of legal process and the rights of the accused to mount a defense, and would amount to a resurrection of the Court of Star Chamber. But the Fitzgerald investigation almost certainly has a more immediate purpose: to frustrate the attempts by victims of Bush-era “enhanced techniques” to mount a defense. It points to the selectivity of the Obama Administration’s “don’t look back” policy. It applies to criminal investigations of those who tortured or authorized torture, but somehow it doesn’t apply to their accusers, who may be criminalized for violations of Kafkaesque unpublished “policies” requiring official amnesia about what transpired. On which side of the torture divide does Patrick Fitzgerald really stand?

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More from Scott Horton:

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

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