Prosecution Over Truth Commission

Michael Ratner: Calls For a 'Truth Commission' Will Lead to a Whitewash: We Must Keep Pressing for Prosecutions

So at this moment, instead of human rights groups getting together and calling for a special prosecutor what do they do? Call for a commission. What this call does and it must be said strongly is take the pressure off what is the growing public push for prosecutions and deflects it into a commission. Outrage that could actually lead to prosecutions is now focused away and into a commission.

If we are to stop torture in the future we need to send the clear message that if an official tortures, prosecutions will follow.

Jeremy Scahill: What if Instead of the Nuremberg Trials There Was Only a Truth Commission?

Representatives John Conyers and Jerrold Nadler are officially asking Attorney General Eric Holder to appoint an independent Special Prosecutor to investigate the Bush-era US torture system. But, as Politico reports, “Holder is likely to reject that request – his boss, the president, has indicated he doesn’t see the need for such a prosecutor.” The Democratic Leadership, particularly Obama, Senate Majority Leader Harry Reid and Sen. Diane Feinstein have pushed for secret, closed-door hearings in the Senate Intelligence Committee. Other Democrats, like Patrick Leahy, advocate establishing a Truth Commission, though that is not gaining any momentum. The fact remains that some powerful Democrats knew that the torture was happening and didn’t make a public peep in opposition.

This week, Lawrence Wilkerson, the former chief of staff to Secretary of State Colin Powell came out in favor of prosecutions of “the decision-makers and their closest advisors...

This week it is Mother Jones Washington editor David Corn, who comes out in favor of a congressional investigation “that placed a premium on public disclosure” or “an independent commission.” This week it is Mother Jones Washington editor David Corn, who comes out in favor of a congressional investigation “that placed a premium on public disclosure” or “an independent commission.”

The bottom line: Anyone who wants the full truth to come out about the Bush-Cheney administration’s use of these interrogation practices cannot count on a special prosecutor.

Perhaps the most passionate advocate for the appointment of an independent Special Prosecutor right now is Michael Ratner, the president of the Center for Constitutional Rights.“To argue that we should not have prosecutions because it won’t bring out all the facts when taken to its logical conclusion would mean never prosecuting any official no matter the seriousness of the crimes,” Ratner told me. “Right now is not the time to be backing off on prosecutions.

Constitutional Law expert Scott Horton says that the problems with a Special Prosecutor Corn lays out are “correct, but he makes the latent assumption that it’s either/or. That’s absurd. Obviously it should be both a commission and one or more prosecutors as crimes are identified.”

Jameel Jaffer, one of the leading ACLU attorneys responsible for getting the torture memos released by the Obama administration agrees with Horton. “I don’t think we should have to choose between a criminal investigation and a congressional inquiry,” Jaffer told me. “A congressional committee could examine the roots of the torture program and recommend legislative reform to prevent gross human rights abuses by future administrations. At the same time, a Justice Department investigation could investigate issues of criminal responsibility. One shouldn’t foreclose the other.” [...]

The bottom line, Ratner argues, is that “prosecutions will bring out facts.” He cites the example of the Nuremberg Tribunals:

What if we had had a truth commission and no prosecutions? ...This is not a time to hold back on the demand that is required by law and fact: appoint a special prosecutor.

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.

The Necessity of Accountability: UPDATE

Both of these videos should be watched:

The New Yorker's Seymour Hersh claims the Bush administration had a secret operations unit with authority to take out targets across the globe. Source: CNN

Rachel Maddow: Obama Strikes Back

Jonathan Turley "Obama Should Appoint a Special Prosecutor"

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UPDATE: Former Cheney Aide Suggests That Hersh’s Account Of ‘Executive Assassination Ring’ Is ‘Certainly True’