( – promoted by buhdydharma )
Well, it looks as though we will be getting half a loaf today in regards to torture accountability. The Washington Post is reporting that Attorney General Eric Holder is going to appoint a Special Prosecutor to investigate about 12 instances where intelligence agents and contractors appear to have exceeded the guidance of the spurious Bybee and Yoo Torture Memo’s. While this is a good thing in and of itself, it is not really a good thing for long term torture accountability. Come on below the flip and the Dog will lay out why we should not get too excited about this.
First off there is the fact this appointment will be a Special Prosecutor, not a Independent Prosecutor. What is the difference? The SP still reports up the chain at the DOJ. He is tasked with investigating crimes which do not include the DOJ itself. This is a big deal as much of the criminality in this case appears to have been aided and abetted by the DOJ Office of Legal Counsel.
There will be problems with proving Judge Bybee and Professor Yoo were legally complicit when they wrote the justifying memos, but there is more than enough reason to investigate. At the Nuremburg trials, we tried several judges who were working within the legal framework of the Third Reich when they enforced laws which allowed torture. We made this kind of complicity an international crime. In fact one of those Judges was executed for his role. This means we should be looking at the role the DOJ itself played in torture. No inside Prosecutor is going to be able to do this effectively.
There is also issue of the chain of command. The Nuremburg trails and the International Conventions Against Torture made following orders in regards to torture a null defense. This means that just having a legal memo from the DOJ and having orders from the Executive Branch does not get anyone off the hook for ordering or committing torture. We should be looking at the entirety of the torture program, not just a few people who exceeded illegal and immoral orders.
The other reason to have concern is who the Special Prosecutor is rumored to be. John Durham is a career prosecutor with the DOJ not an United States Attorney. He has a pretty good record, but he is not the kind of powerhouse who could take this investigation wherever it leads. He is the currently the prosecutor investigating the destruction of the CIA interrogation tapes.
He has been making some progress on this, and he is involved with dealing with the prevarications of the CIA already. This may or may not help. In any case the appointment of someone at this middle level shows pretty clearly that AG Holder is not looking to fully meet his legal obligations. He is trying to give the people calling for accountability half a loaf and hoping they will be satisfied with that.
The fact this story has leaked on the day when the CIA IG report from 2004 is going to be released is a clear attempt to have something, anything, to point to when the cries for accountability to the law are raised again latter this week. It is a mildly good first start, but we should not kid ourselves at all that this is going to be even close to enough. We must keep the pressure on AG Holder to appoint someone with the mandate and the horse power to investigate not just the Bush White Houses role in this, but the role of the DOJ. When you are starving for justice, half a loaf is certainly better than none, but is it not enough by half when we are talking about the rule of law in a nation of laws!
Until we have someone with the stature of USA Fitzgerald and the full authority to follow the criminality in regards to torture and the abuse of prisoners wherever it takes him, we can not be satisfied with half measures.
You can read the entire Washington Post article here.
The floor is yours.