Attorney General Eric Holder is considering appointing a special prosecutor to investigate whether crimes relating to torture were committed by federal personnel during the Bush administration. There’s one big problem, however, with what Holder is proposing: His mandate to the special prosecutor would limit the investigation to underlings who committed acts outside the parameters set forth in the so-called torture memos and prohibit any investigation and prosecution of the higher-ups who designed the overall scheme or participated in its implementation. It also would prohibit prosecution of people who broke the law by committing acts that fell within the authorized parameters.
In principle, Holder’s plan would be no different from the many investigations into the torture at Abu Ghraib conducted by the Army, in that it would have the effect of making it look like the U.S. government stands against torture by going after underlings while, at the same time, protecting the higher-ups who are ultimately responsible for what their underlings have done.
What if conduct within the authorized parameters violated the law? Under Holder’s plan, that will not be investigated and will just have to be excused. The notion is that the underlings who committed those acts were just following orders.
What about the president, vice president, and other higher ups who designed and implemented the interrogation program? Undoubtedly, Holder would say that they should be immune from investigation and prosecution because they were just complying with the legal opinions of the lawyers in the Justice Department.
What about the attorneys themselves who issued the torture memos? Are they subject to criminal prosecution? Holder would say no, under the assumption they were just innocently issuing good-faith legal opinions in response to a request from the president. How can we prosecute lawyers for doing nothing more than issuing flawed legal opinions?
What a crock, and Holder knows it, because there is another distinct possibility that deserves investigation and, if confirmed, criminal prosecution: a conspiracy to violate laws on torture, one in which the torture-memo attorneys were actively involved by conspiring to issue bogus legal opinions to provide cover for the president and the vice president and other higher-ups who were designing and implementing the torture program.
For those who think that lawyers would never conspire to violate the law, don’t forget the occupation of the main co-conspirators in the Watergate conspiracy: lawyers. Richard Nixon, John Mitchell, John Dean, and John Erlichman.
Did such a conspiracy exist? Were the torture memo attorneys truly issuing good-faith legal opinions or were they knowingly issuing false legal opinions for the purpose of providing requested cover for the White House?
We don’t know the answers to those questions. That’s what a special prosecutor should be free to ferret out in a full investigation. By limiting the scope of the inquiry to underlings who went outside the authorized parameters, Eric Holder is ensuring that the American people never find out.
Jacob Hornberger is founder and president of The Future of Freedom Foundation.
