Undernews is the online report of the Progressive Review, edited by Sam Smith, who has covered Washington during all or part of one quarter of America's presidencies and edited alternative journals since 1964. The Review has been on the web since 1995. See main page for full contents

May 21, 2009


Former Prosecutor Elizabeth de la Vega - There is no doubt that sometime in 2002 - if not before - Bush administration officials and their lawyers began orchestrating a torture campaign, which they calculatedly attempted to justify through specious legal memos. They continued to abuse prisoners, and to conceal that mistreatment from Congress and the public, through at least 2008. In all of this conduct, they have committed grave crimes for which they must be held accountable. I believe this to be a national imperative of the highest order. I have pored over every available book and report about torture, disturbing as they are, and I have read the lurid facts and twisted legal reasoning laid out in the Office of Legal Counsel torture memos just released by the White House. I am increasingly outraged by the day, disgusted by years of inaction, and impatient for results. Consequently, I would like nothing more than to join with so many friends and associates whom I respect in calling for immediate appointment of a special prosecutor.

Unfortunately, however, I can't do it. Not yet. We must have a prosecution eventually, but we are not legally required to publicly initiate it now and we should not, as justifiable as it is. I'm not concerned about political fallout. What's good or bad for either party has no legitimate place in this calculus. My sole consideration is litigation strategy: I want us to succeed. . .

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. . .

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.

Once this happens, all who wish to avoid the issue have a ready excuse. The president can refuse to comment because there is an ongoing criminal investigation. And members of Congress from either party can look the other way, because - again - there is an ongoing criminal investigation. It's a perfect dodge. . .

If a special prosecutor were appointed today, what we would have tomorrow would be the very public initiation of a federal grand jury investigation. But that is all we would have. At the same time, however, we will have likely ensured that there will be no public congressional hearings for years to come. Potential targets or subjects who might previously have felt comfortable enough to speak publicly and further incriminate themselves will clam up. Because of the stringent secrecy rules that govern grand jury proceedings - and prosecutors' justifiable concern about violating them - information that was previously public may be transformed into secret grand jury material. (It sounds crazy, but it's true.) Victims and witnesses will be interviewed behind closed doors. And most will gladly heed the prosecution's suggestion that, while they have no obligation to keep their testimony secret, there are very good reasons to do so. So there will be no public narrative, no official opportunity for victims to describe what was done to them by the US government. . .

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:


Anonymous Anonymous said...

Congress has a constitutional responsibility to investigate executive branch abuses of the law. Congress is legally the only body charged with this responsibility. In failing to do so , they are in violation of their oath of office. If we had a truly independent investigation of 9/11, Bush, Cheney, Meyers, et al would be found guilty and hanged for treason. Interestingly, the first 9/11 commission based much of its findings on two hundred sixty-six waterboardings of two men who predictably provided the traitorous torturers with the false information necessary to start two illegal wars and smear the U.S. Constitution with the illegal crap known as the patriot act.

May 21, 2009 7:46 PM  
Anonymous Anonymous said...

Any chance we can nail the Clintons for their crimes while we're at it? Not the Lewinski Diversion, but their murders?

May 22, 2009 12:21 AM  
Anonymous Anonymous said...

As priceless thinker Arthur Silber points out in his tremendous
Power of Narrative blogspot
, prosecution of Bushco torturers will achieve negative benefit. It will only, in fact, serve to sweep the larger criminality that is America's historic and ongoing pathological foreign policy under the rug, thereby actually ensuring torture can and will continue.

A few snips from one of Arthur's many remarkably valuable essays, "A Vicious Fury, with nukes":

...Given the prevailing realities of American politics and culture, I am unalterably and unequivocally opposed to investigation and prosecution of these monstrous crimes.

...I have referred to the phenomenon of pathology as foreign policy. When one contemplates these facts, it is very hard to conclude that anything other than pathology is involved. Our strategy is indefensible, irrational and immensely destructive, and yet almost no one questions it. ...This particular pathology is so inextricably woven into our myths about the United States and about ourselves as Americans, that we believe this is simply "the way things are," and the way things ought to be.

...As I have discussed at great length, torture represents an immense evil. Yet the current obsessive focus on torture constitutes only another facet of the same overall pathology. In the manner of a Lady Macbeth compulsively washing her hands, almost all of our ruling class and those who support them believe that if only they can remove this single "damn'd spot," all of their and America's sins will thus be purified. As with Lady Macbeth, this is the route to a final, irrevocable break with reality, and to ultimate destruction.

..close to none of our politicians and almost none of our prominent national voices will offer a serious challenge to the view that America is entitled by right to be God on Earth. In the context of this pervasive national denial of the truth of the American State and its explicitly proclaimed goal of worldwide dominance, the preoccupation with torture is another manifestation of the identical denial, just as it profoundly misidentifies the nature of the evil involved and reverses cause and effect. For torture is not some aberrational addition to the American polity; it is not a localized barnacle that can be scraped off an otherwise strong and healthy hull.

The truth is precisely the opposite: Torture is an inevitable and necessary part of the American project as envisioned and directed by the ruling class. The American government's systematic use of torture long predated the Bush administration, just as America's foreign policy of endless, aggressive intervention abroad took shape over more than a century, often most zealously directed by Democrats prior to the arrival of the detestable Bush.

...But our ruling class and those who call for anything less than the most radical of reforms refuse to acknowledge any of this.

By seeking to localize the evil in only one aspect of the much broader and more fundamental evil involved and within a falsely delimited period of time, the torture obsessives would thus whitewash the American project as a whole. And until our foreign policy of the last hundred years is uprooted entirely, torture will never be eliminated.

So the selective pursuit and possible prosecution of a few of those who devised, directed and implemented the U.S. torture policies, but only those of recent vintage and not any of those that went before or are yet to come, will conveniently provide the United States with a clean slate upon which to write new chapters of crime.

May 22, 2009 11:30 AM  

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