Just Say No to Torture Immunity

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Sen. Feinstein and the Senate Intelligence Committee are presently conducting a secret investigation of Bush’s torture, rendition and imprisonment program to determine future US torture policies. Given the current climate favoring the investigation and prosecution of Bush officials, a lawyer would have to be crazy to advise clients to “interview” or testify even at a secret probe without immunity or a similar deal.

The problem is that if Feinstein provides immunity to any of the witnesses, then this Feinstein probe may interfere with any subsequent Congressional investigations (Leahy/Whitehouse or Conyers) and prevent prosecutions of wrongdoers because oftentimes immunity is dished out to the big cheese rather than the grunts. While some think of the Attorney General as being the decision maker in charge of who is provided immunity, it is the politicians who decide the fortunate ones entitled to this get-out-of-jail card of Congressional immunity.  

This issue of the deleterious impacts of providing immunity arises with the current secret Feinstein probe and also with any potential Congressional hearings where politicians may decide to provide witness immunity, knowing that pending or future prosecutions could be eliminated. Thus, it may be a good time to see why we should just say no to immunity for witnesses involved in the torture investigations.

People talk about full or limited immunity, but Congressional immunity is restricted to partial derivative use immunity, which means that the government is prohibited from using both the immunized testimony and any evidence derived directly or indirectly from the immunized testimony, such as leads of the names of persons or other evidence.

The witness immunity only protects the immunized witness from subsequent criminal prosecution. It does not protect other persons who are the subject of the immunized witness’ testimony. And, the immunity does not apply to subsequent civil or administrative proceedings.

However, one problem is that congressional grants of immunity have been provided prematurely before a “prospective witness’ full culpability is known, and before anyone can effectively evaluate the truthfulness of the story the witness is peddling.”  The result is that immunity is often provided to the most culpable parties in order to prosecute the least culpable parties because politicians want the short-term success of headline news.

When a witness asserts their privilege against self-incrimination, then the Congressional committee provides notice to the AG that it intends to seek a court order to compel testimony under immunity. However, “neither the Attorney General nor an independent counsel would have a right to veto a committee’s application for immunity.”

Ever since the Iran-Contra investigations, Congress is faced with a political question when it considers providing immunity to a witness: Whether it is more important to provide information to itself and the public or to obtain a successful prosecution of the wrongdoers.   The Iran-Contra independent counsel Lawrence Walsh described this power of Congress to determine national priorities:

If the Congress decides to grant immunity, there is no way that it can be avoided. They have the last word and that is a proper distribution of power. . . . The legislative branch has the power to decide whether it is more important perhaps even to destroy a prosecution than to hold back testimony they need.

This has been true since 1990 when the federal courts tossed the cases against Oliver North and Poindexter:

Nevertheless, the Fifth Amendment requires that the government establish priorities before making the immunization decision. The government must occasionally decide which it values more: immunization (perhaps to discharge institutional duties, such as congressional fact-finding and information-dissemination) or prosecution.  If the government chooses immunization, then it must understand that the Fifth Amendment and Kastigar mean that it is taking a great chance that the witness cannot constitutionally be indicted or prosecuted.

Kastigar is the name of a hearing where the prosecutor must prove to the court that its case against the defendant is not based on immunized testimony or any derivative of immunized testimony, but rather is based on legitimate independent sources. This protective shield or bubble around the immunized testimony extends to “witnesses who studied, reviewed, or were exposed to the immunized testimony in order to prepare themselves or others as witnesses.” This means that the bubble extends to all the other WH officials who prep for their own testimony before Congress by reviewing the immunized witness’ testimony or those government officials who read media reports of the immunized testimony or watched televised hearings. So, when the Congressional committees immunized North, this precluded the use of other government officials from the DOJ, CIA, or any other agency as witnesses against North in his criminal prosecution because their testimony was tainted by reviewing or hearing North’s immunized testimony.

The courts and politicians have noted that the prosecutor has a heavy burden that often cannot be sustained, and then there is no prosecution. As stated in the North case, the prosecutor can satisfy the burden by “establishing that the witness was never exposed to North’s immunized testimony, or that the allegedly tainted testimony contains no evidence not ‘canned’ by the prosecution before such exposure occurred.”

“Canning” means that the subsequent prosecution must be based on evidence that the AG independently obtained and sealed (or canned) before the witness’ testimony and/or information obtained after the witness’ testimony that is not derived directly or indirectly from the immunized testimony.

This canning process is why the timing of investigations by various Congressional committees is so important. The AG needs time to gather independent evidence against that witness and file under seal before the witnesses testify at Congressional hearings.

Congressional investigators and federal prosecutors must be allowed to work as long as necessary behind the scenes to piece the puzzle together, before the door to immunized congressional testimony is opened.

The burden is so high for the prosecution to pursue criminal charges that “anybody with an ounce of brains involved in a scandal as a key witness” will not testify without immunity. Even John Yoo recognized in 1997 that the probability that immunity will ban criminal prosecutions encourages witnesses to spill all the beans to prevent any criminal liability.

The reality of immunity functioning as a get-out-of-jail card can motivate the GOP to advocate the necessity of providing immunity to any Bush official to ensure that the official cannot be prosecuted. This was not always the case. Government officials used to feel “uncomfortable” about the public shame of invoking the Fifth Amendment and thus many targets of the Nixon Watergate probe were convicted because they never sought immunity. That changed with the Iran-contra hearings when more WH aides invoked the 5th Amendment.

So, politicians can play the immunity game of talking tough about investigating scoundrels while also ensuring that there will not be any criminal prosecution. In this NY Times article written during the Iran-Contra hearings, the special prosecutor Walsh asked the Congressional committees investigating to delay a vote on granting immunity to North.  Walsh argued that the committees had sufficient evidence about North’s role so that no immunity was necessary. Moreover, Walsh needed more time to gather independent evidence for his case. Congress did give Walsh 3 months previously to grab his evidence for canning, but he needed more time. Aside from one Democrat, the lawmakers quoted in the article are all GOP refusing to provide the prosecutor more time on the sham grounds that it was important that the American people heard from North ASAP.  

This is one of the rationales politicians use: The country faces a national crisis that warrants the necessity of immunity. However, the political need for immunity simply does not exist with torture that has been ongoing for so many years. Congress abdicated its role as overseer and legislator for so many years that it would be incredulous to now argue that the “demands of a national crisis may justify sacrificing the criminal prosecution of those involved in order to allow Congress to uncover and make public the truth of the matter at issue.”

It is unlikely that anything can be done to stop or postpone Feinstein’s secret hearings, but any Congressional hearing can establish a policy of no immunity or other deals to witnesses – at least until this country has determined whether to appoint a special prosecutor.