On the special prosecutor debate: Of Black Holes and Radio Silence

[livvy]

Of Black Holes and Radio Silence
Monday 20 April 2009

by: Elizabeth de la Vega, t r u t h o u t | Perspective

A former prosecutor examines the special prosecutor debate.

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.

I know that what I have to say may not be popular, but the stakes here are too high to ignore "bad facts" - i.e., those that might run counter to our position or the course we've decided to take. So, it's better, I think, for me to tell you what I know to be true about grand jury investigations and the requisites of preparing a criminal case for indictment and trial - even though you might not like to hear it. Then you can make this assessment yourselves.

First, the bottom line: From the perspective of anyone who wants Bush and Cheney and their top aides to be held accountable for their crimes, the designation of some sort of independent prosecutor right now would be the worst possible eventuality. It's a move that has so many downsides - and holds so few real benefits - that I would be more inclined to question President Obama's motives if he appointed a special prosecutor than if he did not. There is a reason why former prosecutor Arlen Specter - a Republican senator from Pennsylvania - has voiced support for a special prosecutor, while former prosecutors Patrick Leahy and Sheldon Whitehouse - Democratic senators from Vermont and Rhode Island, respectively - would prefer a public inquiry.

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http://www.truthout.org/042009R