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As Meteor Blades discussed on Tuesday, Elizabeth de la Vega, a former federal prosecutor, has advocated waiting to appoint a special prosecutor in the interests of full public disclosure of the torture program and more successful prosecutions. She was on Countdown on Wednesday night to further argue her point (video below the fold).

Unfortunately, her argument misses a key point: the running statute of limitations.

During her interview with Olbermann, she made the following key points:

  1. A special prosecutor would allow both Congress and the administration to bury any torture investigation, sending it into a "black hole". She specifically cited the Scooter Libby investigation as an example.
  1. There is no guarantee of an indictment from a grand jury, meaning that the full story may never be known without an initial public investigation. Again, she cited the Libby investigation, where he was only indicted for perjury and we still don't know the full story.
  1. The need for a full public narrative regarding torture, which is unlikely to arise without a public investigation and report.
  1. And, finally, now that the law establishing the Office of the Independent Counsel has expired, special prosecutors aren't really independent and their appointment is essentially a PR move. She again cites the Libby case, but also investigations into the destruction of the CIA torture tapes and the US attorney firings.

Overall, it is a fairly convincing argument and it immediately cooled my blood. However, I’m not convinced. The reason rests largely with this point made by Christopher Anders, the ACLU’s senior legislative counsel during a live chat at Crooks & Liars.

Holder doesn’t have to appoint an independent prosecutor today, but he can’t waste too much time. The Anti-Torture Act has an eight-year statute of limitation, but Abu Zubaydah (who was waterboarded 80+ times in a single months) was captured in March 2002, and FBI agents who observed the CIA interrogating him from April-June 2002 described it as "borderline torture" and comparable to SERE tactics. The statute of limitations for those particular interrogations runs out in about a year. And that’s a very important set of interrogations because they occurred before the OLC opinions were issued—so no OLC opinions there to complicate a prosecution.

This is a point that bears repeating. We should not allow the statute of limitations to expire on this, as has happened for some of most clearly illegal warrantless wiretapping. The issue of the statute of limitations is not just one allowing some bad actors to escape prosecution. As in the case of the wiretapping program, the April-June 2002 interrogations are strategically opportune events on which to base a prosecution, because they avoid possible defenses. There can be no good faith reliance on advice of counsel defense for acts that occurred prior to the receipt of advice from counsel, which could be key in getting low- or mid-level officials to testify against their superiors. In January, John Conyers proposed extending the statute of limitations on torture and warrantless wiretapping, among other crimes, to 10 years. It is unfortunate his proposal was not quickly acted upon. It is too late for the March 2004 wiretaps, but not for the April-June 2002 interrogations.

I do not believe that de la Vega is in any way disingenuous about believing that the best possibility for a full public accounting of the torture program and a successful prosecution of those involved requires a more measured public approach. However, indictments will take time even in the aftermath of a full public report from a commission, a report that will take considerable time in of itself. In the absence of congressional action, the clock is ticking and the questions may need to be asked: would we rather a full public accounting or a prosecution? Are we willing to let some people involved go free by virtue of their early departure from the administration, like Jay Bybee, in order to make the case against others stronger? These are not questions for which I have a comfortable answer, but someone will need to get one - sooner rather than later.

De la Vega's original article is located here.

Originally posted to salamander on Thu Apr 23, 2009 at 01:11 AM PDT.

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Comment Preferences

  •  On a broader note (7+ / 0-)

    It should not be possible for the statutes of limitations for any crime committed by executive branch officials in their official capacities to expire during a two-term presidency, meaning that they all must be longer than 8 years or they should be tolled until the end of the current administration. This seems like a common sense reform, though I’d be willing to hear arguments saying otherwise.

    "Because I am involved in mankind." - John Donne

    by salamander on Thu Apr 23, 2009 at 01:13:06 AM PDT

    •  I agree (2+ / 0-)
      Recommended by:
      pascal, One Pissed Off Liberal

      The clock needs to be reset whenever there's the possibility of it being gamed.

      "Reagan's dead, and he was a lousy president!" -- Keith Olbermann 4/22/09

      by kovie on Thu Apr 23, 2009 at 01:49:00 AM PDT

      [ Parent ]

    •  I would think a case could be made (1+ / 0-)
      Recommended by:
      pascal

      that at some times it would be more proper for a Statute of Limitation to begin when a Pres. or VP leaves office because the way courts postpone trials, the executives ability to keep secrets until out of office, and Head of State Immunitys, etc, etc.

      Grow Marijuana go to Prison, Torture a Detainee to Death and earn a Medal. No wonder people get high.

      by SmileySam on Thu Apr 23, 2009 at 02:34:06 AM PDT

      [ Parent ]

    •  In effect, they already may. (2+ / 0-)
      Recommended by:
      NLinStPaul, pascal

      The law on statute of limitations is complex, but in general the statute does not begin to toll until the act is discovered.  People can be prosecuted 10 years later on crimes that have only a 2-year statute of limitations, if the crime is not discovered until 9 years after the event.  That's actually not uncommon in crimes that can be concealed (e.g.: embezzlement), and I'd imagine a skillful prosecutor could make a similar argument in the case of government-concealed torture.

    •  How can there be a statute of limitations... (1+ / 0-)
      Recommended by:
      pascal

      ... for war crimes?

      The illegal war in Iraq (a war crime) is still going on.  Prisoners are still illegally being kept at Gitmo in legal limbo: few have been charged, the appeals processes for the very few who have been charged with anything is still going on (it's already been determined that MCA '06 is unconstitutional, or at least the part of denying people habeas corpus is unconstitutional; I'm not sure any other parts have been challenged, but that doesn't take away the fact that most of it is unconstitutional and should never have been passed in the first place.  If it isn't formally repealed, it will set precedent that a "president" and spineless chickenshite Congress Critters once denied habeas primarily at Georgie's own whim.

      I'm pretty sure there's no statute of limitations on the Geneva Conventions, but it's been a while since I read it in its entirety so maybe I missed something.  What about US Code Title 18 (war crimes)?

      In any case, we needed to start these trials a long time ago, and for the life of me I can't figure out why the delays - other than statute of limitations and protecting the "reputations" of Dickie, Georgie and their ilk, or finding our Congress Critters culpable in assisting in cover-ups.  What's the going rate for treason nowadays?

      I disagree with de la Vega, obviously.  I've been ready for impeachment trials and war crimes trials since the first lies about WMD and the invasion of Iraq.

      (¯`*._(¯`*._(-PROSECUTE-)_.*´¯)_.*´¯)

      by NonnyO on Thu Apr 23, 2009 at 05:46:44 AM PDT

      [ Parent ]

  •  seems like a dramatically short statute (1+ / 0-)
    Recommended by:
    pascal

    I'm going to have to go and check up on various statutes of limitation for various crimes, but only 8 years for torture seems patently absurd, and increasing to 10 years doesn't lessen the absurdity all that much.

    If there even should be a statute of limitations for a crime as egregious and shocking to the conscience as torture, it should be at least 20 years.

    free the information

    by freelixir on Thu Apr 23, 2009 at 01:41:26 AM PDT

    •  an example from the state of Ohio (1+ / 0-)
      Recommended by:
      pascal

      I would think, without question, that torture would fit in with this class of crimes:

      A statute of limitations establishes a time limit for prosecuting a crime based on when the offense occurred.  For most felonies, the statute of limitations is six years.  However, the statute of limitations for all of the following crimes is 20 years:  voluntary manslaughter, involuntary manslaughter, kidnapping, rape, sexual battery, unlawful sexual conduct with a minor, gross sexual imposition, compelling prostitution, aggravated arson, aggravated robbery, robbery, aggravated burglary, burglary, felonious assault of a peace officer, aggravated assault of a peace officer, felonious assault, and aggravated riot committed prior to July 1, 1996.

      free the information

      by freelixir on Thu Apr 23, 2009 at 01:46:52 AM PDT

      [ Parent ]

  •  Statute of limitations (4+ / 0-)

    There is no such thing when it comes to war crimes. Furthermore, America's own sovereignty-violating actions over the past few decades allow foreign powers to clandestinely come into the country to kidnap accused war criminals and deliver them the the Hague. I'm drooling as I type this.

    •  From your link: (1+ / 0-)
      Recommended by:
      pascal

      Article 1

      No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:

      (a) War crimes as they are defined in the Charter of the International Military Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (1) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the "grave breaches" enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims;

      From the Geneva conventions:

      Art. 50. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

      I'm not sure whether the US has actually ratified the 1970 treaty, and of course the previous admistration used the dodge that 'enemy combatants' were not covered by the Geneva Conventions.

      But of course, most other countries have ratified both treaties, so Bush better watch out when he goes to Canada to debate Clinton, and for most of the rest, Hawai'i is going to be the most exotic location to holiday for the rest of their lives.

      The FOX is a common carrier of rabies, a virus that leaves its victims foaming at the mouth and causes paranoia and hallucinations.

      by Calouste on Thu Apr 23, 2009 at 02:08:50 AM PDT

      [ Parent ]

  •  no time to fool around (1+ / 0-)
    Recommended by:
    pascal

    .
    We'll have to torture it out of 'em!

    DIBBS ON CHENEY!!!
    .

  •  Let the pressure build... (1+ / 0-)
    Recommended by:
    pascal

    and then bring down the hammer on the Bush ring.

  •  "We Don't Fucking Torture" (2+ / 0-)
    Recommended by:
    pascal, ericlewis0

    Who'd have thunk it?  A Faux Noise correspondent with a small sense of integrity:

    "We are America, we don't torture! And the moment that is not the case, I want off the train! This government is of, by, and for the people -- that means it's mine. That means -- I'm not saying what is torture, and what is not torture, but I'm saying, whatever it is, you don't do it for me! I want off the train when the government starts -- I want off, next stop, now!" - Shepard Smith

    http://www.huffingtonpost.com/...

    Khun David aka Crisis Corps Volunteer

    by Khun David on Thu Apr 23, 2009 at 02:47:42 AM PDT

  •  short answer: NOW!!!!!!! n/t (0+ / 0-)

    friend good, fire bad.

    by ericlewis0 on Thu Apr 23, 2009 at 04:51:44 AM PDT

  •  No Need For Haste (0+ / 0-)

    The media has the scent of dirty laundry.

    Whistleblowers are beginning to emerge.

    Former generals and intelligence officers are coming forward.

    This thing is gaining momentum.  The time to start talking about a prosecution is after the momentum has built.

    I think things are going to pick up in the next couple of weeks.

    If they don't and this gets pushed to a back burner again, then perhaps it will be time to start thinking of a prosecutor.

    For now, I think it is best to let the pressure build.

    "I always found it interesting that people would cast aspersions on failure, as if it were a bad thing." -- Michael Steele, RNC Chairman

    by journeyman on Thu Apr 23, 2009 at 06:15:52 AM PDT

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