Holder Considering Special Prosecutor
Haven’t heard this kind of talk in a while:
Four knowledgeable sources tell NEWSWEEK that he is now leaning toward appointing a prosecutor to investigate the Bush administration’s brutal interrogation practices, something the president has been reluctant to do. While no final decision has been made, an announcement could come in a matter of weeks, say these sources, who decline to be identified discussing a sensitive law-enforcement matter. Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama’s domestic priorities, including health care and energy reform. Holder knows all this, and he has been wrestling with the question for months. “I hope that whatever decision I make would not have a negative impact on the president’s agenda,” he says. “But that can’t be a part of my decision.”
Holder’s quite right to say that he’s not supposed to think of the impact on the domestic legislative agenda. But I think it’s something we here in the peanut gallery both can and should think about. Back during the transition, I had a lot of concern about this derailment possibility. But from the vantage point of July, it doesn’t look to me as if there are any substantial number of Republicans interested in voting “yes” on a universal health care bill or on a clean energy bill. So how derailed can the agenda become?
40 Responses to “Holder Considering Special Prosecutor”
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July 12th, 2009 at 11:38 am
MY “So how derailed can the agenda become?”
Not very.
July 12th, 2009 at 11:43 am
Never underestimate the power of the media to further derail things. They’ll fill every press conference with questions about this, based on Cheney/Rove talking points, until the end of time.
July 12th, 2009 at 11:45 am
(or at least until healthcare and energy are dead, whichever comes first)
July 12th, 2009 at 11:49 am
Good point, Matt. Except I would rather say the Democrats are doing their best to pass “compromised” watered-down bills that have little hope of reforming our energy or healthcare policies (we’ll see, but that’s where they’re headed). So in my view, the Dems and the administration are doing a good job on their own to derail their own agenda.
Besides, I’ve never understood why this “concern” should translate into non-action.
July 12th, 2009 at 11:52 am
But from the vantage point of July, it doesn’t look to me as if there are any substantial number of Republicans interested in voting “yes” on a universal health care bill or on a clean energy bill. So how derailed can the agenda become?
The relevant parties here are not the Republicans in elected office but rather the DINOs and the so-called liberal media.
Even at this age many people who should know better think the media are liberal and think certain DINOs are liberal on account of their being Democrats.
The media and the DINOs, for various reasons — including their “need” to prove their “objectivity”, the agendas of conservative publishers/corporate lobbyists and owners and the media’s/DINO’s own complicity in Bush era crimes by failing do their jobs and expose/provide checks on Bush & CO — will be up in arms against these investigations. Of course, one could argue that “these folks are also not supporting any progressive agenda anyway”, but neither have they fully arrayed themselves to block it at this point (only partially so).
What would happen if they go after the Obama administration? Well, it isn’t that they would block anything specific they aren’t de facto blocking, but that they would make a lot of noise. What would follow is that a lot of people (the swing votes who make or break elections) will start thinking “well, the wingnuts were right about Obama — they are so radical and so set for vengeance that even the liberal media and many Senate Democrats think Obama & CO have gone too far”. Let us not forget how successful the GOP and their allies in the media and amongst DINOs have been based on convincing people that “liberal Democrats have gone too far”.
Moreover, alas as recent headlines have shown too many people still have residual racism and the thought of a “radical, Black Pres. and AG” will cause political problems.
I’m not saying that justice shouldn’t be pursued here, but we should know that, even if no GOoPer, even the so-called moderate ones, will be made to oppose Obama any more than they already are, there are still political considerations, because our political discourse is still broken.
July 12th, 2009 at 11:52 am
Maybe Holder still believes in something called ‘the rule of law’. He should talk to Obama about this fancy concept.
And time to stop talking about “Bush administration’s brutal interrogation practices”. People were tortured to death.Let Cheney and Bush explain in front of a jury where was the interrogation part when their goons were killing people with Nazi-like methods.
July 12th, 2009 at 11:53 am
I see that while I was going about long-windedly, Luis made the same point as I far quicker and more cogently than I did.
July 12th, 2009 at 11:54 am
I think if we don’t get the health care vote in August, either its blocked or not enough votes – whatever…. AG Holder will appoint a special investigator.
July 12th, 2009 at 11:56 am
This argument is similar to the GOPers who say “Al Qaeda members are going to hate us anyway, so what’s the point of trying to reach out to the Muslim world?” or “The Iranian government is going to claim the protesters are American stooges anyway, so what’s the point of making measured, carefully-crafted statements that avoid taking sides in the election?”
The point isn’t what the radicals – al Qaeda members, Iranian hardliners, Republicans – think and say. The point is how credible those radicals are going to appear to the general public, who could go either way.
The GOPers are going to claim that any investigation is a partisan witch hunt; the investigations need to be carried out in a manner that doesn’t lend that charge credibility.
We, the good guys, the ones who oppose torture and wan prosecutions, could still lose this debate. We’re winning, but there are a lot of people in the middle who could still go either way.
July 12th, 2009 at 12:01 pm
oh… if a special prosecutor is selected – there’s going to be several sweaty politicians losing some sleep over their part in hiring CIA contractors for ‘enhanced interrogation’.
July 12th, 2009 at 12:01 pm
Ben Nelson and Blanche Lincoln will use ANY rhetorical paradigm to avoid the passage of health care legislation. Defending the Bush administration and their use of torture will be just what the doctor ordered for anti-progressive conservative Democrats.
July 12th, 2009 at 12:02 pm
Well, folks Glenn Greenwald is now reporting new facts about what that investigation “would entail and, more importantly, would exclude…”
July 12th, 2009 at 12:03 pm
The president leaving criminal investigations and prosecutions to the Justice Department, rather than making them a political issue, demonstrates a complete lack of respect for the rule of law.
If he really respected the rule of law, a president would lean on his Attorney General more, to accommodate the preferred schedule of political activists.
July 12th, 2009 at 12:06 pm
Matt’s post shows just how derailed American legislative and executive branches have become. One can’t enforce the rule of law for its impact on the political process?
So much for the key tenet, democracies are based on the rule of law.
July 12th, 2009 at 12:10 pm
Look, if you never do anything that offends Ben Nelson’s delicate fucking sensibilities, then you never do anything. That asshole is going to change parties, and for all intents and purposes he already has.
The way out of this silliness is for (cough) someone to stand up and say, “restoring the rule of law will not derail my agenda; restoring the rule of law is my agenda.” If I had any hope that he would do that, I’d feel a whole lot better about the state of things.
Fiat justia ruat caelo, and all that.
July 12th, 2009 at 12:28 pm
I’ll second the suggestion to read Greenwald. This looks to be an attempt to defuse pressure on the issue by nailing a few grunts and letting the real criminals go.
For all Obama’s fine qualities, he doesn’t seem to care at all about making the powerful obey the law.
July 12th, 2009 at 12:37 pm
Matt:
Back during the transition, I had a lot of concern about this derailment possibility. But from the vantage point of July, it doesn’t look to me as if there are any substantial number of Republicans interested in voting “yes” on a universal health care bill or on a clean energy bill. So how derailed can the agenda become?
I agree. At the beginning I was more concerned about the economy going off a cliff, but now that the Obama administration prevented that via the stimulus the question is what’s your priority? Fighting rising unemployment or all out partisan war?
If the centrists won’t compromise with the President on his agenda in good faith, then they ought to risk naming the special prosecutor, which – have no illusions – will overshadow everything and will likely spin out of control.
Alan:
Matt’s post shows just how derailed American legislative and executive branches have become. One can’t enforce the rule of law for its impact on the political process?
So much for the key tenet, democracies are based on the rule of law.
Only the fucking naive believe the law isn’t political. They will be fishing for evidence and it will painted as a witch hunt. Remember Clinton’s impeachment?
If Holder has the evidence and sees the likelyhood of successful prosecutions and if the centrists won’t play ball, then yes it’s worth the risk of Obama’s losing all of those bipartisan voters who won him the election. At least he can make the argument to them that the other side – the centrists – didn’t negotiate in good faith. And then will the ultralefties admit they were wrong about Obama when he loses in 2012. No of course not.
July 12th, 2009 at 12:38 pm
Once you head down the road of criminalizing the policy decisions of the prior administration, you’re walking the road to hell. How does that set the incentives for the Obama administration in 2012 or 2016, knowing that there are plenty of people already who consider some of his actions in Afghanistan to be “war crimes”?
July 12th, 2009 at 12:41 pm
I don’t really care about the dubious effects on Obama’s domestic agenda. But I do care about minimizing the chances of jury nullification, which I believe mandates taking a relatively gradual approach.
July 12th, 2009 at 12:50 pm
peterg
I’ll second the suggestion to read Greenwald. This looks to be an attempt to defuse pressure on the issue by nailing a few grunts and letting the real criminals go.
For all Obama’s fine qualities, he doesn’t seem to care at all about making the powerful obey the law.
Greenwald’s update:
That is virtually the opposite of the reports today suggesting that the DOJ lawyers and policymakers would be excluded from the investigation, which would focus only on rogue interrogators. That’s why I cautioned that these preliminary, anonymous reports not be assumed to be the final truth (and the conflicting reports could reflect that the scope of the investigation is still unclear and could be shaped by public reaction). Still, given our political culture, I’ll believe that there is a real criminal investigation underway that includes high-level, lawbreaking political leaders only when I see it.
At least Greenwalds says “given our politcal culture” instead of “given the Obama administration’s tendencies.”
I was right and the ultras who presume Obama guilty were wrong. If this goes forward it will be big. Will the peanut gallery admit they were wrong? Not in a million years.
The reporting by Jane Mayer and others on Cheney said that he was motivated to go on a PR attack because he took great offence at the “grunts” being left out to dry and take the hit. However laudable this is, you have to wonder if his PR offensive – like the AEI speech after Obama’s big torture speech at the National Archives – helped motivate the Obama administration.
July 12th, 2009 at 12:58 pm
Once you head down the road of criminalizing the policy decisions of the prior administration . . . .
The U.S. criminal code is what “criminalized” their conduct. So the real issue is whether federal officials are going to be subject to the criminal law, or not.
July 12th, 2009 at 1:02 pm
Plenty to debate as to whether Obama’s agenda will be “derailed,” but can we at least agree that the appointment of a special prosecutor will not “roil the country”? Unless, of course, by “country” they mean David Broder, Sean Hannity, and the teabaggers.
July 12th, 2009 at 1:50 pm
Once you head down the road of criminalizing the policy decisions of the prior administration, you’re walking the road to hell. How does that set the incentives for the Obama administration in 2012 or 2016, knowing that there are plenty of people already who consider some of his actions in Afghanistan to be “war crimes”?
I would hope it would set the incentives such that they avoid any conduct that could legally called a war crime. You’re somewhat mistaken if you think we’d prefer to abandon enforcing the rule of law so that our President can do what he wants. If he’s doing anything near as bad as Bush, he can share his fate (or what the fate of Bush administration should be if the rule of law were actually, you know, followed).
July 12th, 2009 at 2:00 pm
criminalizing the policy decisions
As DTM says, this is a total non-argument. Under this logic, an administration can break any laws and if the following administration prosecutes, they are criminalizing mere political policy differences, you know, people of good faith can disagree on certain things and it’s all good, just because water-baording has been considered torture and illegal FOREVER, Cheney’s decisions to do it was just a policy decision.
But the criminalizing the policy decisions argument is just something they have to say to fill the big empty space of having literally no other defense, they’ve been caught naked and red-handed and the only question is do we have the courage to prosecute them for it, so it can’t happen again.
What James Robertson apparently doesn’t care about, or fear, is that another administration will choose to break some laws that he actually might want abided by (2nd amendment maybe) and under his logic, they can just get a hack to write a memo and call it a mere policy difference.
July 12th, 2009 at 2:13 pm
The bottom line is that it’s important for someone other than the Obama Administration to take the lead in investigating what happened. Which leaves Congress or the Justice Department.
I’ve always preferred the Special Prosecutor route, because it de-politicizes the process at least to some degree, inasmuch as the investigation is channeled through the legal process rather than “hearings” on Capital Hill. Will a special prosecutor investigation stir a partisan hornets nest? Of course. But a Special Prosecutor also does much of his or her work outside of the public eye, and can rightly rely on secrecy on insulate the process from overt political attacks. The Scooter Libby investigation, for example, was attacked on partisan grounds…but at the same time, Fitzgerald’s investigation was unquestionably a *legal* process, conducted outside of the direct control of politicians. The beauty of a special prosecutor is that he or she is beholden to no one.
More importantly, a Special Prosecutor is the most effective way to investigate. The threat of indictment against smaller fish, criminal sanctions for lying to federal officials, the formality and seriousness of grand jury investigations, and the ability to gather information outside of the media spotlight are all preferable to public hearings in terms of getting at the real truth of what happened.
July 12th, 2009 at 2:27 pm
I second owenz’s post.
Plus, it might be noted that Holder is required BY LAW to prosecute if credible evidence exists – and it obviously does.
July 12th, 2009 at 2:29 pm
This post seems pretty naive. Yeah, so right now Republicans won’t vote with Obama. Big deal. That’s a far cry from what would happen if a special prosecutor starts going. All the oxygen would be sucked out of the room, and no Democrat will have any interest in pushing through ambitious agenda items in that environment. And you can’t blame them. They would get killed for doing so.
What you have here is a genuine dilemma. If you prosecute then you lose major agenda items, and the American people suffer due to no health care reform, or whatever. If you don’t prosecute then you’re giving up on the rule of law and allowing evil to go unpunished. Either way something valuable is lost.
It would be useful to have a clear sighted discussion of which option is the least bad. Hoping that we can get everything we want is wishful thinking; it does no one any good.
July 12th, 2009 at 2:33 pm
I vaguely support the idea that there should be prosecutions, but people need to get off the idea that “rule of law” means convicting the guilty. Our legal system has points to allow the guilty to not be convicted: the police can refrain from investigating, or they can let off on a plea bargain, or they can be let off on a technicality, or whatever. Convicting the guilty is not an intrinsically good thing, it is a necessary evil that must be exercised with great caution.
Punishment is always a negative in of itself. It increases the amount of suffering in the world, and can be justified not merely because the person is “bad” but only if the punishment has the effect of preventing future suffering: by deterring or preventing the convicted themselves from being . The idea that bad people just plain deserve to suffer is the very epitome of vindictiveness, and it is evil.
July 12th, 2009 at 2:54 pm
The DC establishment has been moving steadily toward an above-the-law posture for themselves.
That idea was refuted long ago and if it is allowed to leak back into our politics, we will all suffer for it.
July 12th, 2009 at 3:00 pm
Never underestimate the power of the media to further derail things. They’ll fill every press conference with questions about this, based on Cheney/Rove talking points, until the end of time.
This pretty much nails it. The press can’t even call the torture that we did torture- what makes anyone think this won’t become anything else but the usual two “political consultants” screaming at each other debate while a bunch of pundits shake their head and bemoan the lack of bipartisanship and Obama’s desire to look into such trifles? It’ll just be a Clinton-impeachment level circus and any sort of momentum into doing anything would be lost. The Democrats could put together a really good health care plan and nobody would even notice
July 12th, 2009 at 3:04 pm
Once you head down the road of criminalizing the policy decisions…
It’s like you’re baiting us with your stupid right-wing talking points. This is not an argument– this is the mindless repetition of bullshit from a brainwashed partisan trying to explain his moral failures.
July 12th, 2009 at 3:07 pm
Not to mention, James, I’m insulted you would waste our time regurgitating those bullshit talking points you’ve had shoved down your throats by right wingers who’ve told you what to think and what to say. It’s a load of shit from right-wing apologists, and for you to come in here and repeat what they0 say in a bid to be taken seriously as a “knowledgeable commenter” is treating the audience here like a bunch of fools. That may work on your dimwitted friends and family, but to us it’s mindless foolishness from right-wing talking-points-monkeys.
James you fucking fool, any idiot knows that torture is against the law, but it’s only because it was performed and advocated by the right-wing politicians whose asses you’ve been licking for most of your life do you defend it. Does it make you feel better to be a worthless toady who believes whatever the Republicans tell you to believe? I can’t believe it makes you feel like more of a man, because to us you seem like a cowardly man beaten down who’s surrendered himself to taking orders from people who spew right-wing talking points.
Seriously, you ass, where do you get off repeating this shit in front of us?
July 12th, 2009 at 5:56 pm
Once you head down the road of criminalizing the policy decisions of the prior administration, you’re walking the road to hell.
Shorter J-Rob: it’s a good thing that Eliot Abrams and the other Iran-Contra crooks got the chance to come back and fuck things up again with Iraq.
As others have said, the US code criminalizes those decisions. J-Rob, being a war cheerleader and selfish fuck, appears to take “escapes prosecution or receives a pardon” to mean that criminal acts done under the auspices of executive policy are not illegal.
July 12th, 2009 at 6:03 pm
Here in Canada when a criminal complaint is filed with the Royal Canadian Mounted Police they are required by procedure to review the complaint and come to a decision as to whether to begin a formal investigation.
I’ve been wondering for sometime while progressives in congress or other opponents of torture have not tried to emphasize that they’re the ones trying to depoliticize this issue–and give Holder cover to do the same–by filing a formal criminal complaint with the FBI or Justice Department.
Matt–or anyone else–do you have any idea why this strategy has not been employed?
July 12th, 2009 at 6:35 pm
Torture is an important issue, in my opinion as important as the economy or health care. Obama used to teach Constitutional Law, and I hope he doesn’t stand in Holder’s way, if Holder really feels a special prosecutor is appropriate. The United States should be able to look at what happened during the past decade, in regard to the treatment of human beings who were in the custody of the United States. We shouldn’t just throw up our hands and say, “well, there goes health care!” And as Matt points out, it’s not as if Republicans in Congress are being very cooperative with Obama anyway.
July 12th, 2009 at 7:42 pm
Anonymous at 2:33pm,
I agree that the desire for retribution per se is not a justification for criminal punishment. However, I think this is a clear case where all the other, better, justifications for imposing criminal punishment are applicable. Not that what you wrote necessarily implied otherwise–I just wanted to make this point explicit.
July 12th, 2009 at 8:31 pm
No, Poptarts, they won’t.
What they will do is claim that the Obama administration is only doing the right thing because they, the ultras, made them.
It’s a pretty sweet set-up: if the Obama administration does the right thing, it’s because the ultras made them with their criticism. If they don’t, well, that just goes to show that the ultras are better than Obama and his army of obedient zombies.
All you have to do is make sure that you bitch and moan all the time, and make sure your demands go beyond whatever is politically feasible at the moment you make them.
July 13th, 2009 at 1:42 pm
I vaguely support the idea that there should be prosecutions, but people need to get off the idea that “rule of law” means convicting the guilty. Our legal system has points to allow the guilty to not be convicted: the police can refrain from investigating, or they can let off on a plea bargain, or they can be let off on a technicality, or whatever.
Yes, but our legal system does not have points to allow the authorities to just ignore flagrant lawbreaking and never even investigate in the first place. If the police, for example, come across a dead body lying in the street, they’re not allowed to say well, maybe we should just leave this one alone, best not to investigate because who knows what we might stir up?
July 13th, 2009 at 6:01 pm
From the moment Pelosi took over as Speaker, there’s been talk of issuing subpoenas or drawing up letters of impeachment, dragging GWB and his posse up to Capital Hill for a come to Jesus moment.
But, there’s always a reason why not to: we want to focus on the elections, the economy, the various policy priorities. And, I’ve supported some of that reasoning.
But, at some point you’ve gotta ask, if you’re not going to ever take people to task for their fuck ups and demonstratively illegal policies, what the hell do you stand for?
I bet the South African government had other things they could have been doing rather than a truth commission. But, since the US doesn’t have a large cadre of people who are seriously thinking of taking the bastards out back and shooting them, I guess the truth setting us free doesn’t really count for anything.
July 13th, 2009 at 9:15 pm
James, I agree that we don’t want to get in the habit of forcing former public officials to defend themselves in court, regardless of the merits of a case. It’s a great way to ruin people, and a bad precedent.
However, many of the actions of the previous administration rise above the mere to-and-fro of policy differences into the realm of legally questionable activities. If they are in fact questioned about these activities, it might have the positive effect that officials in the current and later administrations would be more likely to push back against futher attempts to circumvent the law, or resign. You know, the way real men used to.
The idea that it’s going to cause the current administration to punk out while prosecuting a run of the mill war is a red herring. “Plenty of people” don’t have standing to sue or prosecute anyone.