We need an independent special prosecutor to be named by the Attorney General to investigate and, where warranted, prosecute violations of the law as it relates to the detainee program conducted by the United States immediately following the attacks of September 11, 2001. A so-called truth commission will, as such things so often do, result in a papering over of criminality by reducing such depraved acts as have been uncovered with absolute certainty to the lexicon of bi-partisan compromise and the necessary dilution that accompanies consensus. Nor are we in any way going to be served by a months-long congressional investigation of the abusive techniques authorized in Washington and employed in Guantanamo, Iraq, and Afghanistan.
The police (i.e., the media and the Senate Armed Services Committee) have done their job and have discovered there is sufficient enough probable cause to believe that crimes have been committed, and so it is now for the prosecutor–once he or she is appointed–to assemble a staff of investigators and attorneys to prepare their case, and move forward.
Already, we are now some seven years on from the first of these abuses. Time is of the essence, and justice requires prompt action. Yet, senior Democratic leaders are dithering.
Sen. Diane Feinstein has already determined that—either in spite of or in studied avoidance of the fact that Sen. Levin’s committee has now released its findings—another six to eight months of investigation is necessary before we can even hope to move forward. Her leader, Harry Reid, agrees, and has publically called for allowing the Intelligence Committee the time to "[get] the facts." And all of this appears quite reasonable to Pres. Obama, whose stance on the issue of an investigation and possible prosecution of the senior Bush officials who authorized and justified the program seems to change with the wind (or, more cynically, as he comes to better understand the Constitutional and statutory limits on his power to decide whether criminal activity will be excused or charged). One thing that he does remain constant on, though, is his seeming desire see as little done about this as he can legally and politically get away with.
Now that serious people agree that the decision to prosecute lies with Attorney General Eric Holder, not with the president, and that it is for the Justice Department to determine the path forward, it would be best for the president to step back from this, say he supports a thorough investigation, and allow the process to proceed. (If Bill Clinton could do so when he was himself the target, surely Barack Obama can in these circumstances.) What most assuredly is not needed is further uninformed commentary from Rahm Emanuel and Robert Gibbs as to where the president stands with regard to the details. His only stance should be that Holder and Justice be provided with the time and distance to do their jobs, and his only goal should be that the whole truth is disclosed to the public and that, if criminality occurred, the criminals be held to account.
That’s the ideal, sure, but it ignores the political reality that very powerful people—some of them still in office—may be discovered as complicit in, if not perpetrators of, these crimes.
So, why a special prosecutor? To answer this, perhaps it’s best to ask, Why not a Truth Commission?, and for that I must align myself with Jeremy Scahill, the author of Blackwater: The Rise of the World's Most Powerful Mercenary Army, who writes:
Recent experience with such commissions, most prominently the 9-11 commission, shows that these can easily turn into whitewash operations. If they wheel out tired old Lee Hamilton, you know this ain’t going anywhere. What is actually needed is an Independent Prosecutor—someone like a Patrick Fitzgerald—to treat this as the major league, far reaching crime investigation that it should be.
Funny, that just two days ago Nick Kristof proposed precisely that: "Among those often mentioned [for heading up a truth commission] are Sandra Day O’Connor, Thomas Kean and Lee Hamilton [...] ."
But more substantively, the primary reason for going forward with an independent prosecutor is that, in contrast to what the 9/11 commission was investigating, (i.e., a failure of government to protect the security of its citizens), the principal matter to be investigated here is the probable criminal activity of that same government. We are not here so much concerned with how we can learn from past mistakes or failures of structures, regulations, laws, and as the 9/11 commission put it, "imagination," in order to correct for governmental failure. Rather, the principal matter for investigation is whether those we elected, those they appointed, and those who carried out the purposeful orders of their civilian superiors committed and ordered others to commit crimes; in short: this isn’t about misfeasance, but malfeasance.
The American public does not need an investigation to determine if torture was committed—of course it was. Read any serious work, such as Jane Mayer’s The Dark Side, and that conclusion is inescapable. Nor does it need a commission to delve into the question of whether such acts of torture were authorized by top-level lawyers and officials in the Bush Administration—of course they were. Read the various torture memos themselves or listen to the former vice president himself, and it is equally inescapable to conclude that what was done to detainees in Guantanamo, Iraq, and Afghanistan was proudly and directly authorized by these people. Nor do we even need a commission to study and report on what the administration’s rationale was for ordering, implementing, and carrying out these activities. They told us flat out: to extract information that would prevent another attack (as if . . .) and, as more recently reported, to obtain information linking 9/11 to the already formulated decision to invade Iraq.
A former senior U.S. intelligence official familiar with the interrogation issue said that Cheney and former Defense Secretary Donald H. Rumsfeld demanded that the interrogators find evidence of al Qaida-Iraq collaboration.
"There were two reasons why these interrogations were so persistent, and why extreme methods were used," the former senior intelligence official said on condition of anonymity because of the issue's sensitivity.
"The main one is that everyone was worried about some kind of follow-up attack (after 9/11). But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."
It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly — Abu Zubaydah at least 83 times in August 2002 and Khalid Sheik Muhammed 183 times in March 2003 — according to a newly released Justice Department document.
Yes, those issues are properly reviewable by congress, commissions, historian, and the after-action investigators found at all levels of government. And certainly, someday, it would be good for such people to look deeply into the whys and wherefores of all of that, for it is important that we learn from the mistakes of the past.
But determining what occurred, while necessary, is not as important as determining that, given what did occur, were crimes committed and, if so, who committed them. And, for that, do we gather a group of citizens with little ability to force an administration hell-bent on secrecy and obfuscation to do anything more than dance legal circles around them, much like David Addington and John Yoo already did when called before congress, and do so without consequence? Or, do we, in full recognition of what these people did—what we already know them to have done—force them to appear pursuant to subpoena (after an obligatory fight to avoid it) and give real answers to direct questions or invoke their right not incriminate themselves?
Only the latter course should be acceptable. We need to know whether crimes were committed in our names, and that is the province of the prosecutor, not the commission. If immunity is going to be offered to some—and you know it will—let it at least come in exchange for accountability and the possibility of convictions, and not merely a better understanding of what took place.
For his part, however, Barack Obama has been, to put it mildly, resistant to the appointment of such a prosecutor. Only recently, and not terribly strongly, did he admit to the idea that it is for Eric Holder to make the ultimate determination as to whether a formal appointment will be made. In doing so, he released the statement of April 16, 2008, that recognized Holder’s role by dousing it with the huge presidential wet blanket of looking forward and moving on:
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.
Is this to be taken as a hint to the attorney general that he will not whole-heartedly support—or in fact disfavors—the appointment of a prosecutor? I would certainly say "yes," if the purpose of the prosecutor is to lay blame. But that is not the role of that office. Rather, the role is, as Obama does at least pay some heed to in his statement, to enforce the laws of the land: "The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals." At the very least, I hope it is not lost on the former constitutional law professor that there is an ocean’s width of difference between merely laying blame and exacting retribution versus the constitutional and statutory (and in this case, treaty-mandated) duties of seeing to it that the laws are faithfully executed.
This is not a time where failures of enforcement, or to be more kind, selective enforcement, of laws can be justified in the name of political expediency and unnecessary (and ultimately unwelcomed) attempts at a false unity between the parties and the people they nominally represent. Not when the very morality of the nation, how it is viewed in the world as it seeks further moral authority to lead it, and its ability to attract international partners for its endeavors (especially in dealing with Iraq, Iran, and Afghanistan) is at stake.
Were Crimes Committed?
Clearly, I believe crimes were committed—otherwise, no diary arguing for their prosecution would make sense. And though this is not anywhere near a unanimously held opinion, there are several statutes that certainly do appear to have been violated, assuming what we have read to be authorized in these memos is what took place. For a factual predicate to proffer charges, I take as at least facial accurate the interrogation techniques described in the popular press, most particularly the work of Jane Mayer, as it appears in The Dark Side, but more so the requests for legal pre-approval that appear as questions in the various torture memos (especially that written by John Yoo and signed by Jay Bybee dated August 1, 2002, which reads as a studied disregard of Sec. 2340A, reproduced below); leaks from the Report of the Internation Committee of the Red Cross; and, perhaps most especially, the recent comments of the Richard B. Cheney and previous comments of high administration personnel who have admitted to fact that interrogation techniques which qualify as torture—as per Attorney General Holder—were committed.
This is Section 2340A of US Code, Chpt. 113C, Title 18:
(a) Offense. - Whoever outside the United States commits or
attempts to commit torture shall be fined under this title or
imprisoned not more than 20 years, or both, and if death results to
any person from conduct prohibited by this subsection, shall be
punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction. - There is jurisdiction over the activity
prohibited in subsection (a) if -
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States,
irrespective of the nationality of the victim or alleged
(c) Conspiracy. - A person who conspires to commit an offense
under this section shall be subject to the same penalties (other
than the penalty of death) as the penalties prescribed for the
offense, the commission of which was the object of the conspiracy.
Section 2340 defines torture:
As used in this chapter -
(1) "torture" means an act committed by a person acting under
the color of law specifically intended to inflict severe physical
or mental pain or suffering (other than pain or suffering
incidental to lawful sanctions) upon another person within his
custody or physical control;
(2) "severe mental pain or suffering" means the prolonged
mental harm caused by or resulting from -
(A) the intentional infliction or threatened infliction of
severe physical pain or suffering;
(B) the administration or application, or threatened
administration or application, of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or
(C) the threat of imminent death; or
(D) the threat that another person will imminently be
subjected to death, severe physical pain or suffering, or the
administration or application of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or
(3) "United States" includes all areas under the jurisdiction
of the United States including any of the places described in
sections 5 and 7 of this title and section 46501(2) of title 49.
Additionally, 18 USC, Chpt. 118, Sec. 2441 details and makes illegal committing war crimes, which include grave violations of the Geneva Conventions:
(a) Offense. - Whoever, whether inside or outside the United
States, commits a war crime, in any of the circumstances described
in subsection (b), shall be fined under this title or imprisoned
for life or any term of years, or both, and if death results to the
victim, shall also be subject to the penalty of death.
(b) Circumstances. - The circumstances referred to in subsection
(a) are that the person committing such war crime or the victim of
such war crime is a member of the Armed Forces of the United States
or a national of the United States (as defined in section 101 of
the Immigration and Nationality Act).
(c) Definition. - As used in this section the term "war crime"
means any conduct -
(1) defined as a grave breach in any of the international
conventions signed at Geneva 12 August 1949, or any protocol to
such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the
Hague Convention IV, Respecting the Laws and Customs of War on
Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the
international conventions signed at Geneva, 12 August 1949, or
any protocol to such convention to which the United States is a
party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and
contrary to the provisions of the Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby-Traps and Other Devices
as amended at Geneva on 3 May 1996 (Protocol II as amended on 3
May 1996), when the United States is a party to such Protocol,
willfully kills or causes serious injury to civilians.
I’d think we could leave it to the special prosecutor to determine and make the case for whether such interrogations techniques such as though pre-authorized by Bybee and Yoo would be considered grave violations. That we prosecuted Japanese soldiers for similar techniques would seemingly provide at least persuasive precedent for an affirmative finding. Bybee and Yoo treat such cases as though they do not exist. And that leads to the next issue: criminal intent.
Of course, with certain exception, no crime can be committed without proving the requisite criminal intent, or mens rea. And while I would love to be able to slam dunk this one, it’s much more difficult to assess based upon merely the facts we have at public disposal. There will be much made of this legal requirement, for it is usually the toughest element of a crime to prove. Thankfully, much of what we have read in the various memoranda themselves evinces a studied and woefully feeble effort to cloak the requested techniques with the imprimatur of law, and in so doing discloses the mental pathway the authors and their higher-ups took to arriving at these so-called legal justifications of torture. They read as the illegal acrobatics taken down the pathway to a studied disregard of the plain meaning of words, phrases, and legal precedent. No lawyer, no matter how "innocent," can claim ignorance of such relevant precedent with a straight face. That discussion of prior cases was so obviously left from the discussion could only mean that the resultant conclusion was one that had been pre-ordained. And we know precisely who in the administration had the power, authority, desire, and bloodlessness to order a legal justification of torture.
For a more thorough explication of the mens rea issue, please see Scott Horton’s excellent piece, The Torture Tango, that appeared in the April 20, 2009, issue of Harper’s.
In addition to what appear to be at least prima facie violations of Sections 2340A and 2441 of Title 18, the Geneva Conventions and the 1994 Convention Against Torture (signed by Ronald Reagan in 1988) obligate the United States to investigate and try persons believed to have either committed torture (i.e., "grave breaches" in the case of the Geneva Conventions) or ordered others to commit torture.
Finally, allow me to get a bit cynical. Once the ball on all this starts rolling, it is not too fanciful to predict that some of these lawyers are going to start falling on their swords and start talking at length as to who it was who ordered these memoranda, under what circumstances, and for what vile purpose. I cannot see Jay Bybee taking the fall to protect those whose bidding he did (or, at the very least, signed his name for). Too, a thorough reading of the journalism that has come from the detainee torture issues discloses several people who did much to try to persuade their superiors and others in the administration not to head down this path. They include such people as Jack Goldsmith, Ali Soufan, John Bellinger, Alberto Mora, Lawrence Wilkerson, and numerous others. (And that is something I’ll try to look into in a later diary: who can be counted on to give evidence to support convictions? Fascinating stuff.)
There is clearly enough to proceed with here, and I believe Eric Holder is obligated to proceed. The acts with are documented (and were admitted) to have occurred clearly justify—indeed they mandate—the appointment of a special prosecutor. From his seat before the Senate Committee on the Judiciary, he said himself that waterboarding, if nothing else, was indeed torture. These memos shine a clear light on how we got from the evil inspiration to the commission of the final acts. An investigation centered on the question of prosecution, to fact-finding, is warranted, and there is no longer any reason to dither with this by awaiting the findings of yet another committee.
So, no, we don’t need another truth commission; it’s time to give this one to the prosecutor and let the case be made.