The Politics of Prosecution
Those who cherish the rule of law have cause to cheer Attorney General Eric Holder's decision to appoint a special prosecutor to probe instances of torture under the Bush administration. Initial reaction, though, has been mixed. Some advocates are especially disappointed that the investigation doesn't seem to go far enough, or more to the point, high enough. Such criticism is natural, but I'm not sure it's entirely warranted.
The real culprits may yet be brought to justice. Special prosecutors frequently exceed their original mandates, often dramatically so. Even if Holder's intention is to keep a tight lid on things, he may be unable to prevent the investigation from expanding. There's ample reason to expect that the evidence will compel it.
Recall that early in his tenure, Holder unleashed a firestorm of controversy by advocating for the release of photos and records relating to prisoner abuse and CIA interrogation techniques. Opponents mobilized forcefully, and the effort was largely thwarted. Since then, the AG has been playing his cards very close to the vest. If he does have an end-game in mind, he's yet to reveal it.
His caution is well advised. The President clearly doesn't want a broad investigation, and any attempt to go after the big fish, like Yoo, Bybee, Rumsfeld, Cheney, et. al, is sure to evoke the full fury of the Republican noise machine. Holder himself can expect to be dragged through the mud. The political costs should not be underestimated.
Complicating matters further, high-level prosecutions would necessarily involve difficult constitutional issues that could take years to litigate. Regardless of what evidence the Justice Department is able to amass, it's not at all clear that any such prosecutions would ultimately be successful. A bad result could be more damaging in the long run than leaving the matter unresolved.
In light of all this, I'm willing concede that it may still be too soon to target the architects of torture directly. When that day comes---and I believe it will---the Justice Department's reluctant, go-slow approach will serve as an effective rebuttal to the inevitable charge of political retribution.
---s
"A bad result could be more damaging in the long run than leaving the matter unresolved."
Not sure your tense is right here. We're ALREADY experiencing a bad result and it's getting worse every day we try and parse and sidestep the issue.
These particular war crimes started what, seven eight years ago?
Seems that everything Americans deserve right now, we're told can wait. Health reform? Wait it out a few more years. Public option? Maybe not this time. Let's wait to see if there's a better political environment.
Climate change legislation, cap and trade, alternative energy?
Let's wait, slow things down. No need to rush this country into something that it should have begun doing two decades ago.
Incrementalism is the last approach we should be employing right now with anything.
And it should never be the approach one takes with accountability.
August 24, 2009 7:39 PM | Reply | Permalink
Thank you for your thoughtful comments, Gary. Believe me, I share your frustration. Nor do I disagree about the damage that's already been done to our nation and our standing in the world. The lack of accountability has been hardly less shameful than the deeds themselves.
The "bad result" that worries me most is for justice to be not merely foiled, but grossly perverted. In my darker moments, I can imagine the perps actually being exonerated. The AG isn't nearly as insulated as we might like to believe. If he's widely perceived to be overreaching, or loses the support of the President in general---it seems tepid, at best, on this particular issue---the potential for meddling increases. Congress can impede a large investigation with the power of the purse strings, grants of immunity, and all manner of other mischief. Who knows what the landscape will look like after midterm elections? And let's not forget that the Supreme Court, which is likely to become involved multiple times along the way, may not be the friendliest venue right now.
I hope that people do keep up the pressure to expand this investigation. In fact, I'd argue it's a moral imperative. At the same time, I remain impressed by Eric Holder's thoughtfulness and integrity. I recognize the difficult tightrope he's attempting to walk, and I'm willing to give him sufficient time to tighten the noose.
---s
August 24, 2009 11:29 PM | Reply | Permalink
Thanks for taking the time to respond. You're trying to "handle" my comment. It's insulting. Very transparent. I recognize this tone, I've seen it elsewhere, but no matter. You're not rude and I respect that.
Have a look at where I'm coming from:
http://www.salon.com/opinion/greenwald/
August 25, 2009 12:02 AM | Reply | Permalink
You're right about the tone, and I'm glad you pointed it out. I'm still new at this.
BTW, Greenwald is always on my "must read" list.
---s
August 25, 2009 12:21 AM | Reply | Permalink
If Obama didn't want his Presidency 'sullied' by the fallout from the Bush Administration, including criminal fallout of the grimmest, most appalling nature, then why did he bother running for the office?
Maybe he is prepared, and this is how he is playing it- to what end is presently unknown.
Or maybe he is unprepared, and he is an utter fool.
August 24, 2009 7:54 PM | Reply | Permalink
Well, evidence suggests Panetta is an utter fool:
http://abcnews.go.com/Blotter/Story?id=8398902&page=1
""Leon will be leaving," predicted a former top U.S. intelligence official, citing the conflict with Blair. The former official said Panetta is also "uncomfortable" with some of the operations being carried out by the CIA that he did not know about until he took the job."
Can this mean he didn't KNOW that the CIA was engaged in a veritable whirlwind of deliriously illegal activities?
Can anyone, much less someone Obama would tap as DCI, be this naive/stupid?
August 24, 2009 8:28 PM | Reply | Permalink
Possible, remember back in April that both BO and LP reassured the staff of the CIA that they would not be prosecuted for just following orders.
August 24, 2009 10:11 PM | Reply | Permalink
I have to admit, that one rankles. Hearing the ignominious "just following orders" defense from the lips of our own President pains me deeply.
The decision not to pursue these cases doesn't preclude going after those who exceeded their "orders." This is the opening Holder needs. I think that at some point, the Justice Department is going to have to address the legality of those orders directly.
---s
August 25, 2009 12:14 AM | Reply | Permalink
I hope, for the sake of us all, our country and the ideals of the founders that the path of investigation leads to the authors of these horrors and that those appointed to the task have the courage to follow it to its end and do justice when they do.
August 25, 2009 12:23 AM | Reply | Permalink
I for one don't want to be going a hunt for CIA officers who were following orders, i rather focus attention on the higher ups who gave the orders and contractors who they hired.
August 25, 2009 3:40 AM | Reply | Permalink
Anyone charged is going to use a defense that the orders were legal -- "I was just following orders" not being sufficient by itself.
That is where the DOJ rubber hits the road: to present evidence which shows they were not. Doing that would then mean going after those who authored and gave and approved the orders.
That Holder is currently indicated that the orders are _presumptively_ legal indicates caution and objectivity. It does not mean that will continue to be his view.
August 25, 2009 4:56 PM | Reply | Permalink