A rumored special prosecutor to investigate those directly involved in allegations of torture prompted sharply different reactions among those who have largely been in agreement on the issue to this point. The question: Would it be little more than a whitewash or the first step in a fuller accounting?
For more on pruning back executive power see Pruning Shears.
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Last weekend the LA Times reported that Attorney General Eric Holder will soon appoint a prosecutor to investigate torture, but limit the scope to just the interrogators. The article quotes Tom Malinowski, Washington advocacy director for Human Rights Watch, as saying “An investigation that focuses only on low-ranking operators would be, I think, worse than doing nothing at all.” That sentiment was quickly echoed by Andrew Sullivan (“they risk retroactively justifying the crimes they ran against”) and digby (“By prosecuting waterboarding ‘abuses’ we are essentially declaring waterboarding under John Yoo’s only slightly less sadistic guidelines to be legal”). It was disputed by Scott Horton (“I would strongly discount the claims that the investigations will never go anywhere because of a lack of witnesses and evidence”) and Daphne Eviatar (“I don’t think there’s any real way for an independent prosecutor to ethically investigate…without that ultimately leading up the chain of command”). I tend to agree more with Eviatar and Horton.
One of the main objections is that it will be finely calibrated to dump all of the blame on a handful of patsies and allow the higher-ups to walk away. The fear is that Abu Ghraib established a precedent for senior level immunity on cruelty. The book is far from closed on that subject, though. Just because the US has decided it will ignore Donald Rumsfeld’s potential culpability does not mean the rest of the world has. For instance, the former Defense Secretary now has to hustle out (via) of countries when complaints against him are filed, and he and some of his former companions may have decided to cultivate a taste for all things domestic. It could also be argued that abuses there put Guantánamo, Bagram and other sites under increased scrutiny, which created another set of headaches for them. For as much as the Bush White House tried to make it go away, it has not. That happened because the news was brought to light, and limited prosecutions could serve that same purpose.
Simply drawing attention to the issue like that is a good reason to favor them. The longer the issue sticks around – the more times it bobs to the surface of political debate – the better the chance a full accounting will begin. For the last couple of months the issue seems to have gone dark. There are good reasons for that; Congressional recesses and the twists and turns of the health care debate have combined to fill up a somewhat light season of activity. A special prosecutor of the sort described by the Times puts the issue back out there, and that has publicity value.
Such a prosecution will not inevitably remain in scope, either. As Eviatar points out, it would more than likely leave some long and extremely incriminating loose strings. If Holder tries to proceed as reported he will be attempting to thread a very small needle: Having enough of an investigation to satisfy critics but not enough of one to touch off a political firestorm. There is no guarantee such fine calibration is possible, though. Even the slickest operatives can have unfortunate surprises sprung on them. Once an investigation begins there is a good chance it will take on a life of its own and not be as easy to control as hoped.
Finally, it fits the model for investigating corrupt organizations. The standard playbook is, target those at the bottom and roll your way up to the top. Indict them and cut deals to get testimony against their superiors. Repeat until you reached the top. The initial targets of the investigation would probably not be shy about advertising their willingness to turn states’ evidence in exchange for a plea bargain. At that point it would be difficult for a prosecutor to refuse to at least look at what was on the table, and the political will to sustain a “bad apples” approach would seriously degrade.
Back in the spring there was speculation about a truth commission that would grant amnesty to all who testified. I tend to put the most value on a full accounting in the belief that knowing the whole truth will result in widespread shame and revulsion towards the policies in question. Those whose names are attached to our program of torture and cruelty would become political and social lepers, which while not being as satisfying as prosecution would still result in some form of punishment. More importantly it would properly blacken this part of our history and live on as a dark warning to future officials. A special prosecutor for those who implemented the policy could serve the same purpose and more, regardless of how it is intended to be used.