(Photo: Jim Young / Reuters)
A former prosecutor examines the special prosecutor debate.
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. And our best hope of doing that is to unflinchingly assess - just as any lawyer would do when contemplating choices of action in a case - what we would have tomorrow if we got what we think we want today. We should obviously think twice about pursuing an intermediate goal, however satisfying it may appear, if it would be counterproductive in the long term. There are times when it's smarter to wait before taking a prosecutive step and this is one of them.
I know that what I have to say may not be popular, but the stakes here are too high to ignore "bad facts" - i.e., those that might run counter to our position or the course we've decided to take. So, it's better, I think, for me to tell you what I know to be true about grand jury investigations and the requisites of preparing a criminal case for indictment and trial - even though you might not like to hear it. Then you can make this assessment yourselves.
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.
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. (Remember Bush's press person, Scott McClennan?) 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.
Certainly, an official initiation of an investigation by the Obama administration now that these latest horrifying torture memos have been released would not be devoid of real benefit. It would constitute a powerful statement to the world and I don't minimize the importance of that. But once the press conference ended, would we all give each other high-fives and move on? Of course not: It is not what we ultimately want at all. What is it we do want? There is rich disagreement about particulars, but - in broad terms, at least - I think it's fair to say that the goals are: (1) a cohesive and irrefutable public narrative of the criminal activity; (2) an opportunity for victims to be heard in an open forum; (3) and accountability for the perpetrators of these crimes, from Bush and Cheney on down.
The naming of a special prosecutor is widely seen and often touted as a quick and almost sure-fire way to achieve these ends - as if merely by setting this train in motion, we will all arrive at the courthouse in no time, ready for trial, where the entire story will be laid out for the public to hear. Unfortunately, however, nothing could be further from the truth. The reality is that, if fulfilled, this wish would result in a painfully short-lived victory.
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.
Nor would the investigation be the shortest in the world, as has been suggested. Yes, there is overwhelming evidence in the public arena. But, ironically, that is more of a problem than a help. A sprawling investigation of any kind into multiple crimes committed by dozens of people - as this is even without the CIA agents - takes a very long time. Prosecutors must bring specific charges against named individuals, and be ready to prove those charges through admissible evidence as soon as indictments are returned. (This is in stark contrast to a civil case, where a complaint is filed and then discovery ensues.) Generally, the prosecutor can not introduce hearsay, anonymous information, speculation, non-expert opinions or unsourced documents. Evidence must be relevant to a charge and presented in an orderly fashion through live witnesses and/or documents. A prosecutor cannot just plop thousands of documents and dozens of reports and books on the counsel table, and tell the jury to have at it.
So what would a prosecutor have to do before presenting the case for indictment? Here is a sampling of tasks that would be necessary: comb through and organize all relevant government memos, reports, emails and the like; litigate issues of classification and privilege; follow up on leads from information obtained; interview hundreds of witnesses and victims; identify each and every memorialized - or reported - statement made by witnesses or defendants; and interview those to whom the statements were made. During this process, the prosecutor would be deciding which, if any, defendants to charge and communicating extensively with attorneys. Only when all of this preliminary work is done would witnesses be called to the grand jury, which could well entail additional time-consuming litigation. This massive effort would take years and there is no guarantee that indictments against anyone - particularly higher-level defendants - would ever be returned.
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.
This statement may be one of the few Hayden has ever made that I can agree with. The truth is that - frustrating and appalling as it is - given the amount of damning information that's been revealed, we are just starting this process. If we are to have any hope of achieving some form of justice for these criminals and their victims, we must let the horror of the conduct and the extent of culpability reveal themselves in public view. And we must facilitate a narrowing of the focus so that specific defendants and charges can be clearly identified in the minds of not just the general public, but decision-makers at the Justice Department.
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.