Torture: We need a special prosecutor!

[IndianaGreen]

Attorney General Eric Holder needs to appoint a Special Counsel to investigate war crimes and crimes against humanity committed by high government officials. The Justice Department under AG Gonzales became a political arm of the White House, firing US Attorneys for not conducting politically motivated prosecutions of Democratic officeholders, and suppressing an investigation on Jane Harman's wiretapped conversations with an Israeli intelligence agent in which she agreed to intervene to sidetrack a criminal investigation on espionage activities by two members of AIPAC.

During the 2008 campaign, candidate Obama promised to eliminate political influence in the Justice Department, and his appointment of Eric Holder was a step in the right direction, particularly in view of Holder's publicly stated regret at having played a minor role in the Clinton pardon of fugitive billionaire financier Marc Rich.

The only way to ensure an impartial investigation of wrongdoing by Bush Administration officials is by AG Holder appointing a Special Counsel to investigate torture. The appointment of a Special Counsel, commonly referred to as a special prosecutor, is the only way to protect the integrity of the investigation and prevent political influence from corrupting the process.

I would like to see someone with the credentials of a Jonathan Turley to be that Special Counsel on the torture matter; however, Turley has been very high profiled in condemning unconstitutional actions by the Bush Administration and it might be better to find someone more low key, but just as committed to the rule of law. As Turley often says, we are a government of laws, not men. The Special Counsel will have to follow the evidence, wherever it leads, and determine if the law was broken and by whom. The Special Counsel will use a grand jury to compel information under oath from witnesses, and if necessary, to indict those charged with crimes.

For Special Counsel I recommend Robert B. Fiske Jr., a Republican, the original Whitewater prosecutor appointed by AG Janet Reno. Fiske is still alive and he is a partner with Davis Polk & Wardwell.

Here is his bio:

Mr. Fiske’s experience as a government prosecutor and lawyer is extensive. He was an Assistant U.S. Attorney for the Southern District of New York from 1957 to 1961, and the U.S. Attorney for the same district from 1976 to 1980. During his four-year term as U.S. Attorney, Mr. Fiske handled a number of important cases personally, including the conviction of narcotics kingpin Leroy “Nicky” Barnes; the labor racketeering conviction of Anthony Scotto and Anthony Anastasio; and the representation of Attorney General Griffin B. Bell in connection with contempt proceedings in the Socialist Workers Party litigation. While U.S. Attorney, he served as Chairman of the Attorney General’s Advisory Committee of U.S. Attorneys. He served as Independent Counsel in the Whitewater Investigation from January to October 1994.

He represented the Judicial Council of the U.S. Court of Appeals for the Fifth Circuit in disciplinary proceedings against a U.S. District Judge and has also served as chairman of a Judicial Commission on Drugs and the Courts appointed by New York State Chief Judge Judith S. Kaye. He was a member of the Commission for the Review of FBI Security Programs (Webster Commission).

http://www.dpw.com/lawyers/bio/fiske.htm

Related LBN thread:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=102&topic_id=3843971&mesg_id=3843971

[denem]

1. The legislative authority to appoint a special prosecutor lapsed in 1999.

[IndianaGreen]

2. True, but the Attorney General still has that authority

The AG is part of the Executive Branch.

On edit:

Here is the statute:

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515–519.

Source: 64 FR 37042, July 9, 1999, unless otherwise noted.

§ 600.1 Grounds for appointing a Special Counsel.
top
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and—

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

http://law.justia.com/us/cfr/title28/28-2.0.4.5.1.html

[denem]

4. The AG can appoint somebody, but they would have no more authority

or powers than the DOJ itself.

[IndianaGreen]

5. Subpoena of witnesses and documents is a very powerful tool

Indictment and prosecution are the tools of justice.

The beauty of a Special Counsel is that it will insulate the President, AG Holder, and DOJ of charges of partisanship by the rightwing media. It is important that the public has faith in the impartiality of the process, and not be dissuaded by the usual drivel that comes out of rightwing radio or TV.

[denem]

6. Agreed. But if that was done in the House, testimony would be in public.

[IndianaGreen]

8. Do you want justice or do you want a circus like the Iran-Contra hearings?

Remember Oliver North's attorney Roy Black saying that he wasn't a potted plant?

The truth will come out at trial, in open court.

[denem]

10. After a period of silence - strike while the iron is hot.

[IndianaGreen]

13. This is a criminal legal matter, not a political issue.

It stopped being a political issue when Speaker Pelosi put impeachment off the table.

Now, the appointment of a Special Counsel does not preclude the House from opening an impeachment inquiry on Judge Jay Bybee, one of the authors of the torture memos, or prevent the public from demanding the firing of visiting professor John Yoo from Chapman University School of Law.

There is nothing to prevent citizens from filing an ethics complaint at the appropriate state bar association that could lead to the disbarment of Judge Bybee and professor Yoo.

[denem]

14. I guess my point is - this talk of independent, non-partisan investigation

has as much credibility with me as bipartisan/post partisan Government. This 'criminal legal matter' is going to be an intensely political issue, with most of the GOP going nuclear, whatever happens. There is no better political attack than one based on truth and the law.

[IndianaGreen]

15. The last thing we would want is a so-called 'Truth Commission'

which will whitewash the entire sorry episode with no one being held accountable, not to mention that there is no legal precedent for such a thing. We are not South Africa!

[enough]

3. An intereting argument was made yesterday on dKos that the Special Prosecuter is not the way to go.

http://www.dailykos.com/storyonly/2009/4/21/722710/-Elizabeth-de-la-Vega-Argues-for-Letting-Matters-Unfold

Elizabeth de la Vega Argues for Letting Matters Unfold
by Meteor Blades

Tue Apr 21, 2009 at 03:32:04 PM PDT

Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. She served on the Organized Crime Strike Force and chief of the San Jose Branch of the U.S. attorney's office for the Northern District of California. On Monday she wrote:

There is no doubt that sometime in 2002 - if not before - Bush administration officials and their lawyers began orchestrating a torture campaign, which they calculatedly attempted to justify through specious legal memos. They continued to abuse prisoners, and to conceal that mistreatment from Congress and the public, through at least 2008. In all of this conduct, they have committed grave crimes for which they must be held accountable. I believe this to be a national imperative of the highest order. I have pored over every available book and report about torture, disturbing as they are, and I have read the lurid facts and twisted legal reasoning laid out in the Office of Legal Counsel torture memos just released by the White House. I am increasingly outraged by the day, disgusted by years of inaction, and impatient for results. Consequently, 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. ...

MORE>>>

[IndianaGreen]

7. Response to Elizabeth de la Vega: Disagreement with a Friend and a Hero

Response to Elizabeth de la Vega: Disagreement with a Friend and a Hero

By David Swanson

There are lots of supposed reasons not to appoint a special prosecutor. The first set of such supposed reasons to come from someone intelligent and well-informed with good intentions has come from Elizabeth de la Vega. Here is a response.

1. If we do not extend the statutes of limitations, the careful and considered delay could end up becoming immunity. Simply claiming that the clock doesn't start ticking until the last act of conspiracy to conceal does not do it, since half the legal experts like that reasoning and half do not and we would have to argue each case, including cases that do not clearly involve conspiracies to conceal. In fact, the most egregious crimes have involved open confessions from the highest officials.

2. The Senate as a whole will never ever approve any useful investigation except in committees, but it might convict following an impeachment that changes public awareness.

3. Congressional hearings produce relatively little.

4. Congress should extend the statutes of limitations, bust the media monopolies to produce more reporting, and reissue and enforce the outstanding subpoenas into which lots of careful work went over the past 2 years.

5. Leahy joined the DOJ in pushing a commission as a substitute, not as a first step, and anything like that begun before a special prosecutor is begun will be treated as a substitute.

6. Impeaching Bybee should begin at once.

7. A House select committee looking into restoring Congressional power and restricting presidential should begin at once or after a prosecution begins, but Conyers' or Leahy's proposal for a commission created by both houses will not go anywhere.

8. House and Senate committees should hold hearings, including to reissue all the outstanding subpeonas.

9. We should not let a hearing begin that can be seen as a substitute for enforcing laws, and there is no reason to delay enforcing laws -- certainly not a deficiency of evidence!

10. De la Vega knows the law and means well and I'm open to being convinced by her, but haven't been yet.

http://www.mediaforfreedom.com/ReadArticle.asp?ArticleID=15549

Above is another point of view. BTW, I am having trouble keeping the above webpage open. I keep getting a stupid DELL/Google page saying "Sorry, we couldn't find http://toksikoza.net/in.cgi%3F5. Here are some related websites: "

[denem]

9. It was a congressional hearing that brought down Nixon,

the very thing called for by yourself and others to impeach GWB.

[IndianaGreen]

11. Yes, but Bush is out of office, and the Iran-Contra hearing didn't go as expected.

In fact, Iran-Contra led to Oliver North becoming a TV hero, with the Democrats in Congress deciding not to impeach Reagan.

As to Watergate, in today's America Nixon would still be President and there wouldn't have been a Washington Post or New York Times following the story. On the contrary, both papers would have buried Watergate in the back pages and send their reporters in pursuit of more important stories such as Miss California losing the Miss USA crown because of her comments about gay marriage.

This is a different America, and media, from what it was during Watergate.

[enough]

12. Thanks IG. Taken together with de la Vega's article, Swanson's response

shows how complex this situation is. I like the tone of his response.

[IndianaGreen]

16. I don't want this to embroil Obama. He has to concentrate on economy and the Taleban threat

Appointing a Special Counsel will take the issue away from the Obama Administration. Let the chips fall where they may.