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Holder Promises to Follow the Law on Any Torture Investigation But Fails to Mention Special Prosecutor

holdereric 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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95 thoughts on “Holder Promises to Follow the Law on Any Torture Investigation But Fails to Mention Special Prosecutor”

  1. This was an amazing read for me. I apologize for getting here so late, but I had to work late. I have to agree with many of you here that the investigation should be as open as possible to make sure all citizens are able to see what the evidence is against these felons. I am concerned if it goes into the special prosecutor’s hands, we may never see much of the real evidence. Theh truth commission is not my favorite either because too much politics is involved and if you have an even number of Republicans and Democrats, I can guarantee that the Republicans will all vote against the prosecution, no matter what the evidence shows. Look at how they have acted during the last 8 years. To expect them to change their spots is a dream.
    I guess what I am trying to say is that the Independent Prosecutor may be the best way to go if he/she is required to produce a non-redacted report for all to see and all hearings should be televised.
    Finally, Mike S., I love your discussion of your mindset during the Kent State murders. I was just thinking about Kent State recently because the 39th anniversary is coming soon and I spent the early morning of my 19th birthday in Jackson County, Illinois jail for unlawful assembly just after the Kent State shootings.(I beat the rap!) How can anyone ever forget their first full body cavity search? Priceless.

  2. Anonymously Yours 1, April 23, 2009 at 8:56 am

    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.
    —–
    Speak for yourself! I disagree almost daily…
    like this morning, in fact…

    Patty C 1, April 23, 2009 at 8:28 am

    My objection was to the misquote…!

    Anybody who pays attention to what I have been saying here for the last year and a half knows where I stand.

    In addition, I would suggest a little thought be given to where we want to end up, before jumping head first off this cliff.

    Obama said he was not suggesting anything. What he said was ‘given a choice’, his preference would be to have an independent bipartisan panel etc…

    And what JT said was ‘the EASIEST thing to do would be to appoint a special prosecutor’ – who, by nature of appointment, outside of the Justice Department, would be non-partisan.

  4. Jill,

    I can’t speak for LottaKatz (although as a MAC user, I will encourage you to learn how to use the MAC – you might find it’s better…), but the issues that come to my mind quickly are Jeremiah Wright and Blago (not even going to try to spell it). I also think we have seen progress on this issue just this week – starting with what Rham Emanuel said on Sunday about not prosecuting the authors of the memos, to what Robert Gibbs said on Tuesday (watching him try to avoid saying that it was a change in position was amusing ;-), to President Obama saying that he would support a bipartisan commission and that it was the Justice Department’s decision (which I think most of us here would agree is the correct position). I think that you would agree (and please correct me if I’m wrong) that whatever President Obama should do, this issue is a hot potato that could derail his entire agenda at a time when we as a country can ill afford it. That being the case, I certainly can’t fault him for moving in a cautious, deliberate matter. I don’t really care how long it takes (within reason) as long as it is done right in the end. I hope this clears up my position.

  5. eniobob,

    This blawg is must reading for people of all occupations who want to understand the nuts-and-bolts, working side of the rule of law, the Constitution, and especially those Bill of Rights be must exercise and uphold to further avoid losing those inalienable rights we all cherish in a free society.

    I have learned abundantly from this site. Professor Turley keeps the law interesting and current in a lighthearted, but informative and factual manner. I especially appreciate the attorneys/lawyers who weigh-in with their lifelong experiences in the legal profession while we have contributions from many ‘paralegals’ here who ferret out current events for us all to question, refute, debate, or simply ruminate over when the anger, astonishment, and/or humor subsides.

  6. LottaKatz,

    I can’t spell on my best days! Help me understand your guys position with a few examples. You say:

    …”Obama is a smart fighter, a counter-puncher that wil take hits early i a match i order to get an insight into his opponents moves and strategy. He takes a position or refuses to take a position and later bring his position more in line with the public opinion.”

    Which issues are you refering to in that statment?

  7. Excellent discussion folks!
    My 2cents:

    I think the guest on Olbermann’s show that EnioBob referenced at the top of the thread was correct: let the info flow and become part of the pubic record and debate. If it’s public now it can’t be lost or destroyed later and some of the principles are not shy about shooting off their mouth at this point. The more that is revealed now insures that those public statements and documents can be used later. The information also serves ti raise awareness in the pubic and increase pressure for a resolution of some sort.

    I was very unhappy with the Libby investigation because appoiting Fitzgerald took the issueit out of the public spotlight and left the direction it would take (and the outcome) entirely in Fitgerald’s hands.

    Slartibartfast raises a good point that I have argued on other sites: Obama is a smart fighter, a counter-puncher that wil take hits early i a match i order to get an insight into his opponents moves and strategy. He takes a position or refuses to take a position and later bring his position more in line with the public opinion. He leads in part by following, gets a mountain of political cover, and improves his rating. He’s going to need a mountain of political cover on this issue too so waiting until there is a persistant and loud drumbeat for action is a very smart move.

    (yea, yea, I know there are mis-spellings, My ‘puter died, I can’t get a new HD installed until tomorrow and I’m on a Mac- which I don’t know how to use. But I had to have my JTsite fix and couldn’t resist posting.)

  8. Mike A.,

    I disagree. Glenn Greenwald’s column addresses how many news orgnaizations won’t even refer to what happened as torture. I listened to Diane Rehm this morning and she said,”what some people may refer to as torture”. The propaganda is coming fast and thick. “Moving forward”, “retribution” instead of rule of law, “torture works”, “there’s a lot going on”, etc. These catch phrases are all attempts to turn people away from paying attention to what was really done.

    JT has pointed out many times that Obama does not have to be involved in this at all. We have an AG. We have clear national and international law. We have highly qualified attys. who are more than capable of taking on this job while Obama tends to the other pressing issues facing our nation. In fact, by not moving forward on investigations he is guaranteeing a partisan fight. He also keeps himself involved with something that isn’t really his business except to get out of the way and follow the law (per JT). If the DOJ can defend the people who misprosecuted Ted Stevens (which they are doing), if they can offer help to defend CIA interrogators (which they have offered), if they can defend Alberto Gonzales against a detainee (which they are), certainly there are attys. available to help in a war crimes investigation. The evidence is rather clear, even if we do not yet have all of it. A special prosecutor could move forward with the available evidence. Deals could be made to commute or pardon in exchange for the full story from each person.

    There is obfuscation about this issue going on right now. In truth, there is a bright line. If we don’t take care of this we are not acting in accord with the highest values of the United States.

  9. Slarti, you make some very thoughtful points. Many of us (including myself) have become so familiar with the shoot from the hip and never change your mind style of decision-making over the past 8 years that we’re having trouble adapting to someone who takes some time to think things through. My main concern now is to make certain that torture policy remains on the front burner. Given what has been coming out the last few days, I no longer see that as a problem. The floodgates are almost fully open.

  10. One thing that to me seems to be an almost defining characteristic of President (and before him candidate) Obama is that his first reaction to issues is quite frequently disappointing to me, but as time goes by his position changes for the better. I find this trait extremely comforting evidence of an intelligent mind reacting to increasing information (especially after the last 8 years). The pace of the news cycle and sheer volume of information and commentary available on the web tend to make us impatient when events don’t move quickly. While I agree with Buddha’s goal of putting public pressure on President Obama and AG Holder, I think that this should be done in a measured way (although the call to prevent the destruction of evidence is obviously an urgent matter). Right now it seems to me that the best thing for this whole process is for as many of the facts as possible to come to light – while the the prosecution of war criminals is important, this is certainly not the only important issue right now and the President has to do what is best for the country. He seems to think (and I agree) that getting embroiled in this right now would hyper-politicize the Washington environment and make dealing with things like health care difficult or impossible. If a light is shined on the facts and an overwhelming majority of the people come to see torture as a stain on our national honor and an ineffective means of interrogation, then prosecution will become not just possible but inevitable. What is needed now (in my opinion) is not the passionate advocacy of a rush to judgement, but a calm, logical refutation of the inevitable attempts by the advocates of torture (as seen by the Cheney media blitz) to reframe the debate in such a way that they can take a position (“it kept us safe”) that prevents the public from turning against them.

  11. Buddha IS Laughing

    Guess the remake would be Remington-Bacon!

    Actually Whooliebacon is an obscure reference to Superstition Mountain.

    If we don’t clean house now and I mean all of it, what will some future administration be willing to do in the coming Water wars…

  12. mj

    I think I can speak for all the regulars on that issue when I say, “There’s no problem with that.”

    In fact, many here (including myself) have argued that either the law applies to all or it applies to none. The Rule of Law and Equal Protection are at the heart of this matter. If Obama screws up, then he can go to prison too, but the truly dangerous precedent would be to say the President is above the law because that would make him King. The concept of divine rulers above the law doesn’t fly in this forum. The U.S. was founded as a country of laws not men in part to avoid the abuses of monarchy. King George and Grand Vizier Dick are about to get a wake up call. One way or another.

  14. This administration is setting precendent if it retroactively prosecutes. Obama better be darn sure that he never does anything questionable(or his minions. Fair is fair. It could come back to haunt him.

  15. Former Federal Leo:
    As I said after my question,To me this only place to get the correct answer.
    And I have not been proven wrong.Thanks!!

  17. Iraq and Afghanistan were oil wars. They could not have been started without “anthrax” and “9/11.”

    Appoint a special prosecutor to investigate 9/11 and unwind the whole ball of wax from there.

    It goes a lot deeper than torture…

  20. Mike,

    Just making sure we were not at cross purposes. Stagecraft indeed. 😀

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