Is there A Method to this Madness?

President Obama recently released four secret Bush-era torture memos. In his statement Obama said:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world.

Rahm Emanuel took this immunity stance further while responding to George Stephanopoulos of ABC's This Week. He claimed that not only shouldn't field officers be prosecuted over breaking the law when it comes to torturing prisoners, but that John Yoos, Steven Bradbury and Jay Bybees shouldn't face any consequences for their actions. These are the guys who wrote the memos.

STEPHANOPOULOS: What about those who devised policy?

EMANUEL: Yes, but those who devised policy, he believes that they were -- should not be prosecuted either, and that's not the place that we go -- as he said in that letter, and I would really recommend people look at the full statement -- not the letter, the statement -- in that second paragraph, "this is not a time for retribution." It's time for reflection. It's not a time to use our energy and our time in looking back and any sense of anger and retribution.

We have a lot to do to protect America. What people need to know, this practice and technique, we don't use anymore. He banned it.

There are some who believe that in order to uphold the rule of law a special prosecutor should be appointed immediately. Congressman Jerrold Nadler,(D-NY) is publicly requesting the Attorney General to appoint a special prosecutor. Judiciary Committee Chairman John Conyers (D-MI) is calling for full investigations into Bush's torture policies.

Could there be a reason that the Obama administration has taken this position of only looking forward and not back?

Elizabeth de la Vega thinks so. She is a former federal prosecutor with more than 20 years of experience. She believes this is not the time to start an investigation or appoint a special prosecutor.

Why?

First, the bottom line: From the perspective of anyone who wants Bush and Cheney and their top aides to be held accountable for their crimes, the designation of some sort of independent prosecutor right now would be the worst possible eventuality. It's a move that has so many downsides - and holds so few real benefits - that I would be more inclined to question President Obama's motives if he appointed a special prosecutor than if he did not. There is a reason why former prosecutor Arlen Specter - a Republican senator from Pennsylvania - has voiced support for a special prosecutor, while former prosecutors Patrick Leahy and Sheldon Whitehouse - Democratic senators from Vermont and Rhode Island, respectively - would prefer a public inquiry.

What is it? Well, for starters, there is - under currently available US law - no such thing as a truly independent prosecutor. There has not been since 1999, when the independent counsel statute expired. Accordingly, regardless of the title given this individual - and whether she were tapped from inside or outside the Justice Department - this appointee would, at a minimum, be required to follow internal DOJ policies and her delegated authority could be revoked at any time. (The regulations that authorize appointing a non-DOJ attorney as "special counsel" - found at 28 C.F.R. Part 600 et. seq - actually make possible substantially more attorney general oversight into prosecutorial decisions.)

Under existing federal law, in other words, the notion of a special prosecutor who would be entirely free from political and institutional influence is illusory. Given that fact - and that it is ordinarily an extremely dumb, not to mention unethical, idea to announce investigations - when an administration does announce that it is naming a "special counsel" of any sort, it is largely a public-relations maneuver. The president thereby appears to be committed to the rule of law, but is, in fact, parking an extremely inconvenient problem in a remote and inaccessible lot.

Well, if not now, then, when?

Wouldn't the same interminable process just happen later? Not necessarily. Notwithstanding the public statements that the president and attorney general made in connection with the release of the memos, I find cause for optimism in their actions. No smart lawyer who secretly wanted this entire issue to disappear would have released those torture memos. From a prosecutor's point of view, the release of those memos with their authors' names in full view was pretty much the same as releasing their photographs with bloody knives in hand. The president and the attorney general may not have said much, but what they did was quietly flip the switch on a searing bright light.

Yes, Obama's Chief of Staff, Rahm Emmanuel, has now said flatly that there will be no prosecutions of Bush officials, but the reality is that this story is far from over. As former CIA head Michael Hayden said on April 19, more by way of complaint than promise: "There will be more revelations. There will be more commissions. There will be more investigations," he said.

What should we do?

What we continue to need, in sum, are unwavering spotlights, even more civic education, and, most importantly, an irrefutable and cohesive factual narrative - comprised of direct and circumstantial evidence - that links the highest-level officials and advisers of the Bush administration, ineluctably, to specific instances and victims of torture. What we will surely have, however, if a special prosecutor is named, will be precisely the opposite: The initiation of a federal grand jury investigation right now would be roughly the equivalent of ceremoniously dumping the entire issue of torture into a black hole. There will be nothing to see and we will be listening intently to radio silence, trying to make sense of intermittent static in the form of the occasional unreliable leak. For years. There may never be any charges and we will almost certainly never have the unimpeachable historical narrative that we need.

Caution and complexity don't sell very well on cable, I know. So you might not hear it there, but we can wait a while for a prosecutor and - if we want to succeed - we should: I don't think any of these guys presents a flight risk and we need to keep this road to accountability well-lit and noisy.

Maybe we should just sit back and have faith and hope in Obama.

Impeach Federal Judge Jay Bybee

From Think Progress:

TAKE ACTION: Tell Congress To Hold Impeachment Hearings Against Judge Jay Bybee

Last week, President Obama released four Bush-era legal memos authorizing torture. The earliest one, from 2002, was signed by Jay Bybee, then an Assistant Attorney General and now a federal judge on the 9th Circuit Court of Appeals. In the memo, Bybee authorized CIA interrogators to, among other techniques:

-- Slam a detainee's head against a wall: "any pain experienced is not of the intensity associated with serious physical injury."

-- Slap a detainee's face: "The facial slap does not produce pain that is difficult to endure."

-- Place a detainee into stress positions: "They simply involve forcing the subject to remain in uncomfortable positions."

-- Waterboard a detainee: "The waterboard...inflicts no pain or actual harm whatsoever."

These techniques are illegal by U.S. statute and international treaty to which the U.S. is a signatory. Bybee attempted to give legal cover to illegal acts, and thus broke the ethical, professional, and legal standards that should govern lawyers. For this, Judge Jay Bybee should be impeached. Congress needs to assert some accountability for these heinous acts.

ThinkProgress is sending a petition to the members of the House Judiciary Committee -- where impeachment articles are drawn -- imploring them to act now to remove Bybee from public office. Please join our efforts by signing onto our campaign. Here's how it could work:

Step One: Hearings. The House Judiciary Committee holds hearings to examine charges against Bybee.

Step Two: Articles of Impeachment. The House Judiciary Committee draws up the articles of impeachment and presents them to the full House with a simple majority vote.

Step Three: Passes the House. The full House moves to impeach Bybee with a simple majority, and then passes a resolution notifying the Senate

Step Four: Moves to the Senate. The Senate passes a resolution indicating its readiness to receive the House "managers" -- in effect, the prosecutors -- and to hear the full articles of impeachment.

Step Five: Trial. 51 Senators must vote to continue with the impeachment trial, and 67, a full two-thirds majority, are required to convict.

An impeachment hearing would require full answers from Bybee -- and would give the American people the answers they deserve. When Bush nominated Bybee in 2003, Congress had no knowledge of the full scope of Bybee's legalese somersaults to make torture appear legal. When asked, he refused to comment, citing executive privilege. Now we know how integral Bybee was to initiating Bush's years-long torture program.

Today, Rep. Jerry Nadler (D-NY), a senior member on the House Judiciary Committee, endorsed impeaching Bybee. "He ought to be impeached," Nadler told the Huffington Post. "It was not an honest legal memo. It was an instruction manual on how to break the law."

Jay Bybee has neither the legal nor the moral authority to sit in judgment of others.

Please sign our petition.

------------------------------------------------------------------------------

Update: Judiciary Committee Chairman John Conyers (D-MI) renewed his call for full investigations into Bush's torture policies today: "It is simply obvious that, if there is no accountability when wrongdoing is exposed, future violations will not be deterred."
-----------------------------------------------------------------------------------

Update: Rep. Linda Sanchez (D-CA), a Judiciary subcommittee chair, said she is "not comfortable with the fact that [Bybee] will be on the federal bench for a lifetime appointment."