The Problem With a Special Prosecutor

[babylonsister]

http://www.motherjones.com/politics/2009/04/no-special-prosecutor-torture

The Problem With a Special Prosecutor
Want the truth on torture? A Patrick Fitzgerald-style investigation may be the wrong way to go.
—By David Corn

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These liberals all want to see alleged Bush administration wrongdoing exposed. But there's one problem with a special prosecutor: it's not his job to expose wrongdoing. A special prosecutor does dig up facts--but only in order to prosecute a possible crime. His mission is not to shine light on misdeeds, unless it is part of a prosecution. In many cases, a prosecutor's investigation does not produce any prosecutions. Sometimes, it leads only to a limited prosecution.

That's what happened with Patrick Fitzgerald. He could not share with the public all that he had discovered about the involvement of Bush, Cheney, Karl Rove, and other officials in the CIA leak case. Under the rules governing federal criminal investigations, he was permitted to disclose only information and evidence that was directly related and needed for the indictment and prosecution of Libby. Everything else he had unearthed via subpoenas and grand jury interviews had to remain secret. Repeatedly, Fitzgerald said that his hands were tied on this point. A special prosecutor, it turns out, is a rather imperfect vehicle for revealing the full truth.

Once upon a time, Washington did have independent counsels. This was a special kind of special prosecutor. Under the law creating that position, these investigator/prosecutors were compelled to release a final report explaining their findings and their decisions to prosecute or not prosecute. These reports--such as the one produced by Iran/contra independent counsel Lawrence Walsh--tended to be lengthy and exhaustive. They extensively explained the scandals that had been investigated. The actions of people not prosecuted were fully explored and explained. Several independent counsel reports were masterful accounts of government improbity.

That was then. The independent counsel statute expired years ago, with neither Republicans nor Democrats complaining. That was because Republicans had hated Walsh. And Democrats had soured on independent counsels, thanks to a fellow named Kenneth Starr.

During the Fitzgerald investigation, some commentators wondered if he could be authorized to produce a public summation of his findings. Fitzgerald, though, showed no appetite for doing so. And no one with clout in Washington (certainly no one in the Bush-Cheney White House) pushed to grant him such authority. It remains unclear--perhaps even doubtful--if such a task could be assigned to a special prosecutor examining torture. Moreover, in Fitzgerald's case, the very existence of his criminal investigation took pressure off Congress and the White House to conduct a probe of the CIA leak that could yield a public report. Whenever a special prosecutor is at work, it offers people who don't desire a complete public accounting to argue, "An investigation is already under way, and we don't want to do anything to jeopardize that ongoing criminal inquiry."

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With congressional leaders mostly mum on the commission idea and with the Senate intelligence committee pursuing a quiet probe with no guarantee of full public disclosure, it's no wonder that some liberals are pushing for a special prosecutor. But they ought to keep a mind a special prosecutor is foremost a crime-chaser--which may indeed be needed in this instance--not an exposer of wrongdoing. And in Washington, justice and truth can sometimes be two very different things.