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.
For the full story, click here.
Here’s a legal understanding offered by the Center for Constitutional Rights and the ACLU (via Jeremy Scahill):
“Ratner (CCR) says that if Holder only allows a narrowly-focused investigation based on adherence to the torture memos, the Obama Administration is “essentially saying that the entire torture program was OK and people have a legal defense to it:”
It is in essence accepting the legal defense that was engineered for exactly that purpose to give people a golden shield and only go after people who go beyond it. It’s like saying, ‘You can torture someone by bending their arm behind their back until it breaks only one bone, but not if it breaks two bones. If it breaks two bones, I’m gonna go after you. If you cut off one testicle, I’m not going to go after you, but if you cut off two, I will. If you waterboard someone 150 times, I’m going to go after you, but not if you do it 83 times.’ It’s a line in the sand, it’s ridiculous. It’s malleable, it’s terrible.
It’s not that I think going after these guys for going beyond the legal memos is so bad, but if its leaving intact the structure of the torture program, then it’s basically not worth much.
Jaffer (ACLU) echoed Ratner’s comments:
We have no problem obviously with investigating and prosecuting interrogators that use torture whether they exceeded guidance or not. But, you have to look at the guidance itself. The memos themselves came from the most senior attorneys in the Justice Department and the authorization for the torture program came from the most senior officials in the Bush administration. To pretend that this is a problem that began and ended with the interrogators who exceeded authority, I think, is indefensible given the evidence that’s already in the public domain.”
http://rebelreports.com/
I agree seamus. What you said is the bottom line.
We’re still torturing people. This is going now where.
Mike S.,
The information about the moles is well known. I would be shocked and appalled if Holder was ignorant of it. When Bush came in Cheney orderd many people fired, replacing them with lackies. Who was hired is information that research assistants could quickly find out. Just as Cheney replaced people, so could Obama or Holder. That argument just doesn’t fly. Further, I was shocked that the idea of “deadenders” was used to explain away the Jeppensen case. The court asked the Obama DOJ to certify the arguments as there own, because the court had been suprised that Obama was arguing the same postitions as Bush. The Obama DOJ certified they had reviewd the case at the highest level and this was their legal position.
Cheneybush never had any problem firing people who wouldn’t do what they wanted. Even Hillary Clinton came into the State dept. and told certain people to clean out their desks by the end of the day. If Cheney and Clinton can do it, I can’t believe someone as competent as Obama and Holder are not competent in the same way.
Speacial Prosecutor= No Prosecution!!
Mike Appleton 1, July 13, 2009 at 1:23 pm
“Bob, Esq., your reference to utilizing a writ of mandamus to compel prosecution is an interesting suggestion, but I’ve always thought that mandamus is unavailable in situations involving a discretionary element. Are you aware of any situations in which it has been used against a prosecutor?”
No, but there’s an ontological element here that cannot be ignored; as brought up here…
Gary T 1, July 13, 2009 at 2:34 pm
“Mandamus could work, if there is a non-discretionary element to it, and it appears there may be here.”
Exactly, and the question becomes:
How does the office of Attorney General (state of federal) exercise a greater (i.e. discretionary) power than the Constitution to which it owes its existence?
Mike Appleton,
To be clear, a writ of mandamus based upon the New York Constitution obligations of the NYS A.G. might be more powerful; if only in keeping the issues outside the debate of politicizing crime.
BobEsq.:
Mandamus could work, if there is a non-discretionary element to it, and it appears there may be here.
Aren’t the obligations to prosecute required by law?
If so, then a Writ of Mandamus might be legal and might work.
yeah… questions… like can we have a trial without punishment? just the way they committed all those war crimes and think they got away with it. There is no statue of limitations on War crimes
It’ll never happen – with or without a special prosecutor.
“Then there are those who argue he is unable to fire the DOJ “dead enders” that are keeping him from prosecutions. It is rumored that perhaps it is Rahm Emmauel who is stopping him. May I suggest that if he cannot fire his subordinates and if someone else in the Obama administration is telling him he may not fulfill the law as is required of him, that he should resign and make public the names of all people who are preventing him from preforming his duties.”
Jill,
You’re good at doing your research, hunt out the stories at the change of administrations about Bush planting many “moles” in civil service positions to make it hard for them to be fired. As someone who in his early career was a Union Official in a Civil Service Union, I can attest to the fact that the process of firing someone with Civil Service Status is long and hard. I saved many an undeserving worker’s job by simply exhausting the process. In later years as an executive whose specialty was “turning around” moribund Agencies and Offices, when I ran into people who needed firing, it was frankly easier to transfer them out than fire them, though I did fire a few really deserving cases of bad and prejudiced workers and Managers. The process typically took 6 months to a year.
Perhaps FFLEO, who has Federal Government experience might comment on this regarding the difficulty of firing miscreant employees who have committed no crime in doing their work.
A series of tweets from “The West Wing:”
Beyond the “secret CIA plan” Cheney covered up (plan to nail terrorists based on 2001 Presidential finding), other questions have arisen
Some argue the secrecy “could be illegal.” Obama’s asking for review of prisoners in Afghanistan who were killed by locals allied w/U.S.
AG Holder also wants to know whether prisoners in GWOT (global war on terror) were tortured. He could assign a special prosecutor
Also: Friday’s inspectors general report revealed additional NSA domestic eavesdropping – programs that were undisclosed under Bush admin.
Obama’s problem: he’d prefer to avoid these distractions and focus on his domestic agenda: fixing the economy, health care, energy
All of these issues, and potential investigations, threaten to undermine the bipartisanship the President would prefer to have.
…and a little later from The Onion
Disillusioned FBI Launches Nationwide Hunt For Some Kind Of Truth http://bit.ly/iZBOl
Bob, Esq., your reference to utilizing a writ of mandamus to compel prosecution is an interesting suggestion, but I’ve always thought that mandamus is unavailable in situations involving a discretionary element. Are you aware of any situations in which it has been used against a prosecutor?
Jonolan, most of the objections I have heard to investigation of Bush torture policies have incorporated the phrase “witch-hunt.” The problem with that position is that it assumes that there are insufficient facts to even warrant an investigation, an assumption which I believe is amply contradicted in this instance.
When you look at the great lengths Jefferson et. al. went to distinguish usurpation from tyranny, to justify rebelling against their king and starting a new republic AND COMPARE THAT to what’ going on here, it’s hard not to laugh in complete disgust.
Writ of mandamus to compel prosecution and strong enough to squelch prosecutorial discretion?
This is a continuation of the Holy Lawyer syndrome which is an ancient concept, which postulates that no person is above the law unless a Holy Lawyer told them to do or not do something.
“Good faith” in this context is a religious notion and in this instance dredges up some of the dark ages jurisprudence.
http://blogdredd.blogspot.com/2009/07/is-law-off-table.html
IMO, this is simply Holder making noises about prosecution to calm the waters. Obama’s intent to imprison the innocent and all the bad publicity swirling around the CIA is taking up a little bit too much news time for the comfort level of the administration. They made noises about prosecution before when the heat was turned up, only to quickly drop the whole thing and promptly immunize CIA officers from any legal accountability.
Holder says he needs a few weeks to consider whether he should prosecute. 1. there’s nothing for him to consider, the law says prosecutions are mandatory and 2. putting the decision off for a few weeks or longer is obviously a stalling tactic. 3. leaking that he will only prosecute those “rogue” torturers is laughable. Torture, is itself a rougue act, by a rouge govt. It is a war crime. There isn’t a kind of torture that is within the law, end of story.
The very fact that this story is being leaked, with several somewhat competeing versions is quite suspicious. There is no reason that Holder is not able to call a press conference and lay out his plans openly. If he’s afraid to speak up due to threats by the previous administration, leaking his intent will not save him from those consequences. He’d be in a much better position acting publicly.
Then there are those who argue he is unable to fire the DOJ “dead enders” that are keeping him from prosecutions. It is rumored that perhaps it is Rahm Emmauel who is stopping him. May I suggest that if he cannot fire his subordinates and if someone else in the Obama administration is telling him he may not fulfill the law as is required of him, that he should resign and make public the names of all people who are preventing him from preforming his duties.
This is a distraction, nothing more. He should appoint an independent special prosecutor, just as JT says, with full authority to take this wherever it may lead. If he does not do this, he should be impeached for dereliction of duty.
You mean like Kenneth Starr was allowed to investigate unfettered and unmolested in the pursuit of justice?
Yeah, another witch-hunt by Congress is just what this country needs right now…
Holder is a coward, traitor and criminal.
If you don’t like the smell turn the fan on and/or get a good exhaust fan. It is time to clean up the fecal matter.
Finally something coming down the pike, but as you say JT, what is the use of a special prosecutor who cannot prosecute?
This announcement and charter has dirty politics written all over it. The administration is beginning to crack, but it almost seems like they have to get used to the idea themselves before even committing to it.
They are afraid to cry havoc, and let loose the dogs of war, they are afraid as to where it might lead, but they can’t have both ways, hoping for the ignorance of the public, either they do it, or they don’t.