Holder Reportedly Considering Special Prosecutor — But Serious Questions Remain

Newsweek is reporting that Attorney General Eric Holder is leaning toward the appointment of a special prosecutor on the issue of torture. Much, however, was not stated and there remains a question of whether Holder will appoint a special prosecutor with the full authority to pursue any and all crimes related to the torture policy. There are rumors that, if an investigation occurs, it may be sharply curtailed.

Notably, these stories do not mention the unlawful surveillance programs, including recent accounts of previously undisclosed secret programs.

The most worrisome statement came from spokesman Matt Miller who said that “[a]s the attorney general has made clear, it would be unfair to prosecute any official who acted in good faith based on legal guidance from the Justice Department.” That dovetails with rumors that Holder is going to announce an investigation and then gut it but saying that no one will be prosecuted for following the legal advice of the Justice Department, even if it called for the commission of war crimes. It is a position that directly contradicts our position in the prosecution of war criminals during World War II where “following orders” was rejected as a defense.

Under Holder’s approach, all a president must do is appoint lawyers who will endorse war crimes — and thereby prevent any prosecutions for the crimes. Holder cannot take the high ground by appointing a special prosecution who is barred from pursuing any crime supported by the evidence. Obviously, any crime would still have to pass through a grand jury, a trial court, and a trial jury. Holder needs to appoint a prosecutor who will be allowed to investigate unfettered and unmolested in the pursuit of justice.

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