Attorney General Eric Holder said Wednesday that he will “follow the law” in deciding whether to pursue criminal charges against Bush officials for the torture program. While first reported as a major advance, the statement conspicuously does not mention the appointment of a special prosecutor, an essential component to any investigation since the Justice Department featured heavily in these allegations.
Holder stated “We are going to follow the evidence, follow the law and take that where it leads. No one is above the law.” That is a great statement and much appreciated. However, the Justice Department should not be investigating itself. The Justice Department is notorious for a certain lack of vigor in the investigation of its own attorneys and any investigation without a special prosecutor from outside of the department would be viewed with considerable skepticism. There is an obvious conflict of interest and it is again bizarre (and worrisome) that Holder is resisting such an obvious step.
In the meantime, the Senate Intelligence Committee released a timeline on the program. Sen. Jay Rockefeller released the declassified report. Rockefeller has been a source of considerable criticism for his alleged knowledge of the unlawful surveillance and torture programs for years and his role in blocking any serious investigation. The timeline indicates that the work on the torture program began before the legal memos used later as a defense by Bush officials.
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Mike and Buddha,
I’m reminded of Roosevelt’s response to Sidney Hillman, “I agree with you. Now go out, and make me to do it.” That has been my guiding philosophy in how I relate to those who are placed into office as my representatives.
“BTW, you are aware that sovereignty runs with the land; aren’t you?”
Bob,
You may not be aware but I flunked NY Property Law twice at St.Johns University Law School, which along with my being involved with the school shutdown after Kent State, the fact of the hair I had then touching my shoulders, Mexican Wedding shirts open to the navel, jeans studded with silver stars and a propensity to smoke forbidden substances instead of studying;
served as the basis for my flunking out and not joining you all in the profession. Taught me a valuable lesson though and in truth I am aware of that phrase, though it calls to me over the haze of of my misspent but enjoyable youth.
Buddha,
How many damn times must I say give it your best and him the worst for you to believe that I mean it? I think by now I’ve got a pretty good idea where you’re coming from and I dig your hyperbole, not to mention interest in a certain literary genre.
In many ways we are kindred souls and I do like the Buddha I see. I don’t want people to shut up because I think this is the kind of public pressure being courted by the Obama administration strategically. You don’t think that I have been continually calling the White House and Congress? My point is that people should not take to heart what is essentially political stagecraft. Play your part, but understand that much of what we see is Maya. In truth I think you’ve known that all along
Mike S.,
Your verbosity is never an issue because you always say something of value. But I put a somewhat convex question to you just so there is no misunderstanding between you and I as your statement shows me that there may be some in re some of my methods of choice. Have you ever wondered why I take Obama to task the way do? I know for a fact I swing at him just as hard as I do at Bush Co. (well, maybe not just as hard but close).
Every lever needs a fulcrum, the importance is the direction of the work achieved. In music, point without counter point can devolve into noise instead of symphony. Every fool needs a straight man to maximize the laugh. A fencer without a counter-foil is merely shadow dancing.
As Ursula le Guin states so beautifully:
Light is the left hand of darkness
and darkness the right hand of light.
Two are one, life and death, lying
together like lovers in kemmer,
like hands joined together,
like the end and the way.
At my harshest, I may seem the right hand and I know this. But to change to the terms of Dickens, am I the Ghost of Christmas Present or the Ghost of Christmas Future?
Just something to think about as I consider you a friend. I want clarity between us as to my intentions concerning truth, justice and the American way.
By the way, did anyone see the not-so-strangely similar situation in the UAE?
http://www.boingboing.net/2009/04/23/uae-royal-caught-tor.html
I just can’t shake the feeling that I’m reading about the US government, too.
Mike,
What can I say; you complete me.
BTW, you are aware that sovereignty runs with the land; aren’t you?
Remember that Declaration of Covenants and Restrictions recorded against 13 colonies circa 7/2-4/1776?
I bring it up because Obama’s ‘sovereign immunity’ argument seems to be precluded by the restriction against the following:
“Where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate”
Bob,
Quis super patefacio?
quia non potest esse judex et pars.
Although it may have gone unnoticed, indeed why should it be, I’ve been limiting my comments on this topic of late and since we’ve all come to know each other to a degree, I feel I owe you my confreres, an explanation. Jonathan, to me has been doing his part to force this issue and should continue to do so. He is an advocate for the rule of law, for constitutional justice and for a better America. I glory in his growing exposure, not because of some vicarious glory, but because I know he is one of the Law’s and our Country’s treasures. That is why I spend so much time here.
Another reason is that I’ve come to genuinely like all the regulars here and many of the new folk that have added their voices. I think too that in my various comments I’ve established my bono fides as to my commitment to justice and to humanity. So after that overlong preamble, you know I do get wordy, here’s the point.
As each new revelation arrives, as each off the cuff remark by our President is analyzed for its purity of content, as each new horror is revealed and as each new statement is parsed endlessly in distrustful fashion, all we do is enforce and reinforce a kind of hysteria (sorry that’s my word choice)akin to the sky is falling and Obama lied to us.
I watched the Presidential election with a tenseness that was literally giving me angina and I was mainlining nitroglycerin to stave it off. I didn’t take a Xanax because I did not want my perceptions dulled and I can’t drink anymore due to my health. My attention was glued to the screen as results drifted in because I wanted the horror of the last 8 years to end, not because I had an overwhelming commitment to the Democratic Party or to its’ front runner.
We won and despite whatever pessimism some may feel the horror has ended. Being 64 and with a lifelong commitment to a better America I’ve lived through much and suffered much pain politically. The artificial “Cold War,” McCarthyism, Eisenhower, the death of JFK, Viet Nam, Nixon, Ford, Carter, Reagan, Bush 1, Clinton’s phony impeachment and finally Bush 2. A big part of the success of the “know nothings” has been that their opponents (us) expend just as much energy in fighting with each other, pessimism and distrust, as they do fighting the enemy. The enemy is not a creature of Left or Right philosophy, but those who would believe in the innate rule of hierarchy and endeavor to insert themselves into it. Fueling this battle for those who worship status and status quo, has been the “Washington Village of serious people” and an MSM that with some exceptions serves as propagandists.
With every fiber of my being I want to see Bush/Cheney and their whole cabal disgraced and punished for their crimes. I believe it will happen and my reading is that the genius of our President is that he is orchestrating it. At the same time there are economic reforms to be made, wars to be ended and national health care to be instituted. People are going to need jobs also and must be rescued by a now barely existent safety net. It is less then 100 days since the inaugural and I believe great strides have been mad on many fronts, despite the recalcitrance of the President’s own party, the emptiness of the opposition and the power of money. Let’s not fail to support JT in protesting this issue, but please let’s keep it all in perspective.
I’ve lived through a time such as this before, where I was playing a bit part on the stage and I must say that some of the people then who I followed didn’t have a clue, as they told me confidently there was no difference between Nixon and Johnson. History proved them wrong, but those old heads still living, honored in their old age, are still getting it wrong blinded by the myopia of their own conviction as to the nature of truth. Nader and Vidal come to mind but there are many others. Change, in the absence of hope is always a loser and optimism is what keeps movements and people alive. The time for action is upon us, but the time for despair is a long ways off.
aliquis non debet esse judex in propria causa
rcampbell,
How are the separate issues? cheney and bush and others ordered the torture. This torture has resulted in murder. It is becoming clear that they and other top officials approved specific acts of torture, time and time again. Why then should their prosecution not be an action required for legal redress of their victims? If no one is above the law is to mean anything, then no one really has to be above the law (especially the top people). Remeber, Obama can pardon anyone and that would be a better way to go.
Buddha,
Yes, the public order to preserve any and all documentation should be issued immediately.
Jill’s Q: How do you feel about providing justice for people who were tortured?
A: In favor.
Jill’s Q: Do they deserve justice or should they be allowed no recourse in a court of law?
A: Justice and legal recourse.
However, these questions and answers seem entirely seperate from the issue of whether or not to prosecute individual top level Bushies. I fully endore investigating these activities in open door sessions (not behind closed doors as proposed by Sen. Feinstein) and publishing the names and offenses for the world to see.
Jill,
I agree that preservation of evidence is a key issue. However, given the scale of crime and the “spooky” nature of many of the participants, if you’ve ever read mystery novels or seen a good political thriller, might I suggest that someone out there wanting to avoid prison is holding on to “an insurance policy”. Also, look at our government from a raw efficiency standpoint. Complete destruction of records of a crime of this scale is probably unlikely as a function of complexity. This does not however obviate the need to issue such an order protecting said evidence.
Prof. Turley,
I know that in a normal investigation involving the DOJ a Special Prosecutor or the equivalent thereof would be appointed and that you have called for that. Given that the Obama administration is fearful of the consequences of conducting an investigation and enforcing the law, is there any alternative to the appointment of a Special Prosecutor that is not a mechanism for whitewashing the crimes that have occured?
I would like to see a genuine, untainted professional criminal investigation of all the matters involved in the US torture program during the Bush years that will follow the trail wherever it leads. I’m wondering specifically if the matter could be handed over to international authorities? Former Gen. Karpinski was on Countdown last night and was adament about having some sort of international panel investigate and prosecute. Is something of this kind even possible?
Frankly, I don’t trust the Obama administration or AG Holder to do their duty in this matter. I believe that if forced by public and international pressure to investigate, they will bend over backwards to clear any and all participants and they will treat the entire thing as a political matter instead of a criminal matter. They are afraid, they don’t view what occured as a crime or series of crimes but instead as a policy dispute as the President has said many times. They will clearly do anything to avoid doing their duty if possible. What are the available options?
Thank you! And thank you for being a voice of reason and an advocate for equal justice and the rule of law!
Buddha,
Here’s something else to think about. I’d like to hear your opinion on this also. (from Ray McGovern)
“One issue of some urgency has been overlooked in the media, but probably not by those complicit in torture by the CIA and other parts of the government. That issue is the need to protect evidence from being shredded. There has been no sign that either Director of National Intelligence Dennis Blair or CIA Director Leon Panetta has proscribed the destruction of documents/tapes/etc. relating to torture, while decisions on if and how to proceed are being worked out.
Many will remember how Oliver North (when the crimes of Iran-Contra were being uncovered) and Alberto Gonzales (when White House involvement in the Valerie Plame affair was becoming clearer) made such good use of the days of hiatus between the announced decision to investigate and the belated order to safeguard all evidence from destruction.
One would think that Attorney General Eric Holder, or President Barack Obama himself, would have long since issued such an order. Indeed, the absence of such an order would suggest they would just as soon avoid as many of the painful truths about torture as they can. The issue would seem particularly urgent in the wake of Obama’s gratuitous get-out-of-jail free card issued to CIA personnel complicit in torture. They might well draw the (erroneous) conclusion that they have been, in effect, pardoned by the president and thus are within the law in destroying relevant evidence-to the degree that being within the law matters any more.”
I agree with mespo that “[w]e already have a ‘truth commission.’ We call it the federal grand jury system.” However, there is a real utility to having a bit more openness in this case. As many of you know, FRCP 6(e) requires that grand jury proceedings be kept secret, but it only applies to the official participants, not witnesses, whom are free to speak about their testimony. I do not disagree with with the Supremes rational for justifying secrecy either (prevention of witness tampering, encouraging testimony, reduction of flight risk from those facing potential indictment and protection of innocent testifying parties implicated but not charged).
However, the way the Federal government has blatantly abused the “state secrets” and “national security” arguments in recent years combined with the politicization of the DOJ and the fact that the major parties facing indictment are well-known and the crimes they are being investigated for affect the basis of all of our law, I say a modification of the secrecy rules ever so slightly for this one instance could have great psychological utility in restoring the faith in process to the average citizen.
People, rightfully so, inherently distrust secrecy. Even more so because of the recent blatant abuses of secrecy by Bush Co. There is also precedent for runaway grand juries, albeit mostly at the state level. Since a claim of a runaway jury is the most likely mechanism for the Neocons scream about a “witch hunt”, why not disarm them before hand by shining a little light on the process? Since the violations in question are not just rooted in the Constitution, but the primary parties in question are Constitutionally empowered officers, this case addresses the very basis of ALL of our law. It’s importance to not only justice, but the very basis of our legal system I think merits more openness as it effects We the People at the most fundamental level – either we are a government of laws as envisioned by our Founding Fathers or we have become a government of men that deserves to be torn down and rebuilt inline with the ideals upon which the Constitution, DoI and Bill of Rights are based. The people have a right to know.
The problem I see when looking at how to create greater transparency is the very rational reasons for secrecy previously mentioned. To function as a finder of fact in preparation of filing indictment, the grand jury must have the leeway to ensure not only the most truthful and revealing investigation possible, but to ensure compliance of reluctant parties.
After wrestling with the nature of a priori and a posteriori argument, I see less problem with “inline/real time” disclosure of a priori matters before a grand jury than with a posteriori matters. Items definable as pure logic issues not requiring experience/evidence to argue can likely be made public and retain the valid utility of secrecy required to analysis of issues that by their nature would require testimony to a posteriori events/facts/evidence in general. However, that quickly devolves into a nearly intractable epistemological quagmire especially if you get a Kant-head like Bob involved. Real time disclosure I feel is not an option.
So my proposition is simple.
Due to the serious nature of the crimes suspected, the “trusted” positions of those suspected of said crimes and the threat these issues pose to the basis of our entire legal system that a full transcript of the grand jury proceedings be made public the day a decision, either for indictment (likely as they are prima facie torturers IMHO) or not (unlikely IMHO), should be made available.
This is possible because secret does not mean unrecorded. To this end, I have to say state secrets and national security arguments be damned in this instance. While I would prefer a full unexpurgated transcript, I would support limited redaction to protect ongoing intelligence gathering operations. But let’s face it, the questions at bar are not about intelligence gathered by traditionally legal means (I’m not naive, I know that the nature of this beast is at best gray.). The questions at bar about about criminal action by the Executive in direct contravention of the Constitution, Federal law and international treaty. Anything not related to ongoing operations should be published and that should be EVERYTHING related to torture since Obama has publicly stated that torture is not an ongoing practice.
I’d like your thoughts on this, Turley regulars.
Jill,
No one disagrees with what you are saying. It is how we get there that may take a little while. You don’t till the soil, plant the seeds and expect a crop the next day.
Somethings take time and patience. It does not mean that somebody may be prosecuted. Our society has become so wanting in immediate gratification that they forget that the factory has to be built.
15 years ago, I would not have imagined this way of communicating and the next thing is the cell. How impatient are we when we want something now. We have gotten used to the ease and get upset when it does not work the way we want.
The harvest will take some time.
rcampbell,
How do you feel about providing justice for people who were tortured? Do they deserve justice or should they be allowed no recourse in a court of law? How do we remain a country who is based on the rule of law if we exempt our most powerful people from legal consequences for their illegal actions? Why are only the poor, middle class and unconnected held accountable? How does this maintain a justice system? To me that failure to investigate the powerful undermines the rule of law. JT has made this argument much better than I can, and I believe he is correct.
Jill
I certainly don’t intend to demean our justice sytem in any way. However, if the point is to seek the truth and place it in the public record versus to punish indivuals, our system allows for alternatives. I agree our Constitution was left a very ill patient by the last administration. The question is what medicine to use to heal the patient. My suggestion was to apply a medicine that remedies the immediate illness without causing alot of damage to the patient’s long term health.
Jill,
While I do appreciate and respect your view, the practicality of the situation has more attenuating consequences that have not been thought out.
I don’t know what you training is in but, If you go to work and you demand that a former boss be held accountable for all of his or her misdeeds that affected you and the company as a whole where would that get you. Not very far, especially if it is a publically traded corporation.
In this situation acting in haste like the former administration quick to act without thinking of the consequences will get us right back into the problems that started the whole thing to begin with.
I may not remember a lot about History, but I do remember a certain special prosecutor appointed by the Nixon Administration that resigned rather than doing what he thought was illegal. I think that a lot of people in the Bush administration should have resigned rather than act. When you surround yourself with yes men or women you are bound to get shit on you and people are uncomfortable in telling you so. This reminds me of the emperors new clothes.
Anyone who does well in Public Office has a certain amount of Narcissism. They have to in order to get over the fecal matter one must sift through on a daily basis.