When Daniel Klaidman published a story on NEWSWEEK‘s website last Saturday regarding Attorney General Eric Holder’s leaning toward the appointment of a special prosecutor charged with investigating the Bush era interrogation policy, my initial reaction was excitement. That feeling was deflated by this week, but not entirely.
Klaidman’s Holder story is eloquently written. It is a must read for anyone interested in seeing the Bush administration held accountable for their torture program. The author provides his readers with clear insight into Holder’s Department of Justice, its relationship to, and interactions with Obama and his staff. Klaidman concludes that Holder’s likely decision is being made in the interest of justice, despite the political complications inherent in an investigation of the previous administration.
Since Klaidman’s article was published, my excitement over the news has been, somewhat, lessened. It appears that any special prosecutor — Klaidman reports that Holder is presently considering 10 individuals for the job — would have one of their hands tied behind his or her back by limiting the scope of a torture investigation to those who violated Bush lawyers’ legal guidance for interrogation.
In this clip from The Rachael Maddow Show, July 13, Maddow discusses the matter, along with the anticipated caveats, with NEWSWEEK reporter, Michal Isikoff:
Despite the restrictive conditions, I remain optimistic that the appointment of a special prosecutor could eventually lead to those who crafted the interrogation policy, up to and including George W. Bush. Feel free to tell me that I’m out of my mind for thinking so, but once investigations of this sort begin, they have a tendency of going wherever the evidence takes them, finding their way around preconceived constraints.
I came across this Harper’s post from Scott Horton, by way of a Jeremy Scahill post at Rebel Reports. Horton’s Monday post totally reinforced my earlier optimism. Horton, a constitutional & military law expert, explains why any constraints placed upon a special prosecutor should be meaningless:
As soon as the special prosecutor gets into the facts relating to the use of the Bush-approved techniques, he will deal with the claims of interrogators and deeply implicated contractors like James Mitchell and Bruce Jessen that they were acting under instructions from higher up the chain and in accordance with guidance delivered by senior CIA officials and political appointees, both oral and written. The special prosecutor will have to examine the bona fides of these claims and investigate the guidance that was given and whether it comported with law. In other words, the conduct of Bush Administration officials may well not be implicated in the specific tasking document issued by Holder, but it would be raised by way of affirmative defense by the interrogators and contractors. The special prosecutor will not be able ultimately to avoid looking at these questions if he or she pursues the job credibly…
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