A bit more complicated

( – promoted by buhdydharma )

Yesterday a couple of things happened that I’d like to highlight in the ongoing discussion on what to do about Bush/Cheney crimes – specifically their use of torture.

Some of you will know of Elizabeth de la Vega – perhaps the country’s most pre-eminent lawyer in chronicling Bush crimes. Yesterday she made a statement about why she is not supporting the call for a special prosecutor – at least not right now.

I would like nothing more than to join with so many friends and associates whom I respect in calling for immediate appointment of a special prosecutor.

Unfortunately, however, I can’t do it. Not yet. We must have a prosecution eventually, but we are not legally required to publicly initiate it now and we should not, as justifiable as it is. I’m not concerned about political fallout. What’s good or bad for either party has no legitimate place in this calculus. My sole consideration is litigation strategy: I want us to succeed. And our best hope of doing that is to unflinchingly assess – just as any lawyer would do when contemplating choices of action in a case – what we would have tomorrow if we got what we think we want today. We should obviously think twice about pursuing an intermediate goal, however satisfying it may appear, if it would be counterproductive in the long term. There are times when it’s smarter to wait before taking a prosecutive step and this is one of them.    


She goes on to lay out what we could expect if “grand jury investigations and the requisites of preparing a criminal case for indictment and trial” were to begin. I’d ask that you go read what she has to say because I really can’t pick particular portions to quote here and do justice to the case she’s making. These are exactly the kinds of things I’ve been concerned about with regards to how our current justice system works and how it might impede the very thing we are trying to accomplish.

I think most of you will remember how it all played out in the work Patrick Fitzgerald did on the Scooter Libby case. I’m not referring to the outcome so much as the process of secrecy in a grand jury investigation. That particular case was small fry when compared to what needs to be addressed in terms of torture investigations. The prospect of years of secrecy, unsubstantiated leaks, and “I can’t comment about an on-going investigation” would not give us the full airing that is so necessary in this situation.

So what is the alternative that de la Vega proposes? First of all, she notes the enormity of the release of the OLC memos.

No smart lawyer who secretly wanted this entire issue to disappear would have released those torture memos. From a prosecutor’s point of view, the release of those memos with their authors’ names in full view was pretty much the same as releasing their photographs with bloody knives in hand. The president and the attorney general may not have said much, but what they did was quietly flip the switch on a searing bright light.

And then she talks about a much more open process.

The truth is that – frustrating and appalling as it is – given the amount of damning information that’s been revealed, we are just starting this process. If we are to have any hope of achieving some form of justice for these criminals and their victims, we must let the horror of the conduct and the extent of culpability reveal themselves in public view. And we must facilitate a narrowing of the focus so that specific defendants and charges can be clearly identified in the minds of not just the general public, but decision-makers at the Justice Department.

The other thing that happened yesterday has already been written about by geomoo. I’d just add that, in addition to what Isikoff and Rep. Whitehouse said about what is currently going on in the Justice Department and Congress, apparently Senator Feinstein (who chair’s the Senate Intelligence Committee) wrote a letter to Obama.

“I am writing to respectfully request that comments regarding holding individuals accountable for detention and interrogation related activities be held in reserve until the Senate Select Committee on Intelligence is able to complete its review of the conditions and interrogations of certain high value detainees,” Feinstein’s letter says.

So the potential of what might be unfolding is a President who is looking forward, a Justice Department that is acting independently, and a Senate that is doing oversight and investigation. I might be jumping the gun here, but perhaps the American people are about to get an civics lesson on what the “balance of powers” means and why its so important.


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  1. that old quote comes to mind…

    “May you live in interesting times.”

    I certainly think we are!!!!

    • Edger on April 21, 2009 at 17:33

    I was going to write about it later this morning, so it saves me the effort.

    Her article was posted on Antemedius last night, too.

  2. is ALSO secret, so that is not much help.

    Also, the challenge at this point is not what form the investigations take….but insuring that there are investigations.

    Up to now there has been no real solid indication that the DOJ or Congress has been doing anything bedsides DiFi’s closed door of the CIA….by the committee that was supposed to be doing oversight in the first place. So the intel committee is also in a way investigating itself, for lack of the investigations it should have been doing all along….especially for the last two years.

  3. of course NO ONE thought it wasn’t going to be complicated fer gawd’s sake!

    We are talking about the War Crimes of a US President, not a traffic ticket!

  4. I think it’s fair to say that the goals are: (1) a cohesive and irrefutable public narrative of the criminal activity; (2) an opportunity for victims to be heard in an open forum; (3) and accountability for the perpetrators of these crimes, from Bush and Cheney on down.

    However this can be done is fine with me (i.e, the form it would take).

    Sheldon Whitehouse was very eloquent in his description of what the national psyche will go through in facing what has happened (assuming folks DO face what happened, which is far from guaranteed given the endless opportunities for denial and distraction).

    There’s a reason this issue isn’t covered in the diversosphere the way it is in the white liberal blogs.  It’s not that the pain is any less, but the visceral and personal understanding of what torture means is no news to many of those writers (and I include Meteor Blades at DKos as well as Valtin).

    For the rest of us (and I include my sheltered privileged white self), it will be much more of a shock.  Our media will be involved, our schools, parents talking to their children, neighbors talking to each other.

    OT, I know, but that’s the aspect of this issue I’m working on now.

  5. So the potential of what might be unfolding is a President who is looking forward, a Justice Department that is acting independently, and a Senate that is doing oversight and investigation. I might be jumping the gun here, but perhaps the American people are about to get an civics lesson on what the “balance of powers” means and why its so important.

    unfortunately I have to take off and go deal with all kinds of annoying little details of life. grrr. looking forward to reading that whole article.


    sunny day here today though. 🙂

  6. 1) High Bush White House officials have openly acknowledged that they authorized waterboarding.

    2)  Waterboarding is torture.

    3)  Torture is illegal, it is a war crime.

    I don’t see how an extended investigation and prosecution process is necessary when the principles who ordered multiple violations of the law and the Geneva Conventions have already confessed their guilt.  Furthermore, documented evidence already exists regarding who conducted torture, where it was conducted, when it was conducted, and who was tortured.

    The American people don’t need a civics lesson about the balance of powers, they need to see the President and the Justice Department call this what it is–AN OPEN AND SHUT CASE.  

  7. I still favor an SP for specifics and a commission for the overview.

  8. government agencies, + morally bankrupt politicians + ideologues + vulnerable people charged with oversight duties are involved in:  

    a. Wrongdoing and

    b. Covering up that wrongdoing–

    …any efforts to implement investigation and accountability are bound to be fighting an uphill battle.  The road to justice will be strewn with disinformation, outright lies, fingerpointing, distraction, and possibly even threats and intimidation.  

    The whole process is indeed complicated.  Not only is there a lot of information that needs to be exposed–that information must be validated, and sourced wherever possible to rule out the real possibility that the CIA, NSA, etc aren’t disseminating some of the information for their own reasons.  

    • robodd on April 22, 2009 at 03:10

    investigation is my fear that many members of congress have some involvement in wiretapping/torture.  I especially worry when DiFi purports to be the flag bearer on such investigations.

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