A Special Prosecutor for Torture?
Should the Department of Justice or a special prosecutor prosecute the Bush administration officials responsible for the authorization of torture? David Corn explores the problems in a thoughtful article on the Mother Jones web site.
The question is “What do we want?” Do we want to know what really happened, or do we want convictions? We may not be able to get both.
As Corn points out, Patrick Fitzgerald unearthed far more wrongdoing than he was able to disclose, due to the rules and regulations that control the prosecutor’s office. Since he concluded that he did not have enough evidence to prove beyond a reasonable doubt that Rove, Chaney and a number of other officials were guilty of crimes, the evidence he had collected could not be disclosed. His hands were tied.
In other words, if the Obama administration prosecutes we may get neither truth nor convictions.
Congressional hearings and even independent commissions have their weaknesses, too. The members of the 9/11 Commission were clearly chosen to favor the government’s version of events and to ignore evidence that conflicted with the that version.
Congressional hearings can turn into three-ring circuses when the stakes are high and one party feels threatened. When members of both parties are compromised, the truth will never emerge.
As I mentioned the other day, Obama’s decision to release the secret memos authorizing torture was most likely designed to test the level of outrage among the public, and thus enable him to gauge the support that he would receive were he to prosecute.
Prosecuting the previous administration carries serious political risks, not the least of which is that the Supreme Court could declare the president immune from prosecution for acts taken in his capacity as commander-in-chief on matters of national security. If you think this is far-fetched, consider that in 2000 the court , on specious legal grounds, stopped the vote recount in Florida and thus determined the outcome of the presidential election in favor of George Bush. The justices appointed since then, having been ideologically vetted before being nominated by Bush and confirmed by a Republican Senate, have not demonstrated that they would have any more scruples about stretching the Constitution to protect Bush and Cheney from prosecution.
It’s a tough question. The only workable solution may be truth and reconciliation commissions modeled partially after South Africa. Persons who are willing to appear before a commission and confess their crimes get a break, ranging from amnesty in the least serious cases, to a reduced sentence in the more heinous ones.
There are serious moral and legal problems inherent with truth commissions, however. As a general proposition, persons who have abused the public trust should not be allowed to escape the consequences of their actions, especially when their misdeeds have resulted in the death and suffering of so many innocent persons. To persuade guilty parties to submit to the commissions, the government must be willing to back up such commissions by prosecuting those who either refuse to appear, perjure themselves, or hold back from telling the entire truth.
Individuals without remorse would have to face the full force of the criminal law. This would probably involve, at the very least, putting Dick Cheney on trial, as he is unlikely to ever admit wrongdoing.
The question is “What do we want?” Do we want to know what really happened, or do we want convictions? We may not be able to get both.
As Corn points out, Patrick Fitzgerald unearthed far more wrongdoing than he was able to disclose, due to the rules and regulations that control the prosecutor’s office. Since he concluded that he did not have enough evidence to prove beyond a reasonable doubt that Rove, Chaney and a number of other officials were guilty of crimes, the evidence he had collected could not be disclosed. His hands were tied.
In other words, if the Obama administration prosecutes we may get neither truth nor convictions.
Congressional hearings and even independent commissions have their weaknesses, too. The members of the 9/11 Commission were clearly chosen to favor the government’s version of events and to ignore evidence that conflicted with the that version.
Congressional hearings can turn into three-ring circuses when the stakes are high and one party feels threatened. When members of both parties are compromised, the truth will never emerge.
As I mentioned the other day, Obama’s decision to release the secret memos authorizing torture was most likely designed to test the level of outrage among the public, and thus enable him to gauge the support that he would receive were he to prosecute.
Prosecuting the previous administration carries serious political risks, not the least of which is that the Supreme Court could declare the president immune from prosecution for acts taken in his capacity as commander-in-chief on matters of national security. If you think this is far-fetched, consider that in 2000 the court , on specious legal grounds, stopped the vote recount in Florida and thus determined the outcome of the presidential election in favor of George Bush. The justices appointed since then, having been ideologically vetted before being nominated by Bush and confirmed by a Republican Senate, have not demonstrated that they would have any more scruples about stretching the Constitution to protect Bush and Cheney from prosecution.
It’s a tough question. The only workable solution may be truth and reconciliation commissions modeled partially after South Africa. Persons who are willing to appear before a commission and confess their crimes get a break, ranging from amnesty in the least serious cases, to a reduced sentence in the more heinous ones.
There are serious moral and legal problems inherent with truth commissions, however. As a general proposition, persons who have abused the public trust should not be allowed to escape the consequences of their actions, especially when their misdeeds have resulted in the death and suffering of so many innocent persons. To persuade guilty parties to submit to the commissions, the government must be willing to back up such commissions by prosecuting those who either refuse to appear, perjure themselves, or hold back from telling the entire truth.
Individuals without remorse would have to face the full force of the criminal law. This would probably involve, at the very least, putting Dick Cheney on trial, as he is unlikely to ever admit wrongdoing.
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