Prosecutions: Now or Later?

Elizabeth de la Vega, a former federal prosecutor, was on Countdown tonight arguing that we need to delay the appointment of a special prosecutor, at least for a while. She cited the following concerns:

  • 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.
  • 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.
  • The need for a full public narrative regarding torture, which is unlikely to arise without a public investigation and report.
  • 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.

The video of the interview can be found here (I still do not know how to embed MSNBC video in wordpress). An article she wrote making the same argument is here.

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.

Read the whole thing and watch the interview – it is a good argument and 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. There can be no good faith reliance on advice of counsel defense for acts that occured prior to the receipt of advice from counsel, which could be key in getting 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 or the August 2002 Bybee memo.

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 that I feel comfortable answering, but someone will need to – sooner rather than later.

On a broader note, 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 good government reform, though I’d be willing to hear arguments saying otherwise.

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