As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."

Saturday, July 11, 2009

Why A Special Prosecutor? Let Me Count The Ways

We have so many reasons from the last Administration that highlight the importance of a special prosecutor to deal with the wreck of the previous eight years, it's a serious task to count them all. Aside from torture, warrantless spying, black sites, indefinite detention, the suspension of habeas corpus, outing a covert CIA operative, lying the country to war in Iraq? You mean we need more reasons?

More broadly, one can highlight the problem of an accountability-free zone in Washington, regardless of the issue. If there is literally no issue where top officials can ever be held to account, this does nothing but give government, in particular the executive branch that deals with security and secrecy, a license to run wild. Consider just the past 48 hours:

• We finally got a report on the scope of the Administration's spying programs, the consensus of five Inspectors General, and while we learned a fair bit of interesting details about the nature of the internal debate over the program, the fact that John Yoo was one of the only human beings in America to know about it because the Cheney/Addington crowd knew he would produce favorable rulings legitimizing it, and the fact that the secrecy ultimately undermined whatever the program was designed to produce in terms of intelligence, all we really learned is that some surveillance program operated completely outside the boundaries of the law, without oversight by Congress, and we to this day have no idea about the extent or nature of the spying. As Glennzilla says, this does not comprise an investigation:

Nonetheless, because the Obama administration is actively blocking any real investigation -- Obama opposes all Congressional investigations into Bush-era crimes and, worse, is engaged in extraordinary efforts to block courts from adjudicating the legality of Bush's surveillance activities by claiming that even long-obsolete and clearly criminal programs are "state secrets" -- it is quite likely, despite how blatant is the lawbreaking, that there will be no consequences for any of it. In a Look-to-the-Future-Not-the-Past political culture, it's irrelevant how severe is the lawbreaking by high government officials. They know they will face no consequences even when, as here, they deliberately commit felonies -- which is precisely why criminality is so rampant in our political class [...]

The IG Report is more notable for what it fails to address than for what it discloses, but that's the nature of IG Reports. Most of the key players who authorized the illegal domestic spying -- David Addington, John Yoo, Dick Cheney, Andrew Card, John Ashcroft, George Tenet -- simply refused to talk to the IGs or, in many cases, didn't even bother responding to their request. The IG's have no power at all to compel them to do so; it's entirely optional. That -- aside from the fact that they work within the Executive Branch and for the very agencies they are supposed to investigate -- is what makes IGs such an inadequate substitute for real oversight: no matter how much integrity and independence they might have, they are extremely limited in what they can achieve.

As any litigator will tell you, the lack of power to compel key witnesses to answer questions and produce documents severely hampers any ability to conduct a real investigation. Yet, when they passed the FISA Amendments Act -- which legalized Bush's spying programs and immunized lawbreaking telecoms -- Democratic leaders kept pointing to the requirement of an IG Report to placate those complaining that they were whitewashing and legalizing Bush abuses. But IGs are simply incapable, given their very limited powers and their institutional allegiances, of any real investigation of this sort. What they were unable to disclose in this Report underscores how limited are their investigative abilities [...]

Over the past couple of years, there have been isolated leaks suggesting abuses of these eavesdropping powers, but there has been no real investigation into the ends to which these surveillance powers were used. As a legal question, it matters little: eavesdropping without warrants is a felony no matter the purpose for which it was done. But since FISA's warrant requirement arose from the recognition that widespread surveillance abuses were virtually inevitable if eavesdropping was conducted without judicial oversight, the lack of any investigation into this question reveals the extent to which both parties have been eager to help cover-up the crimes that were committed during the Bush years. The IG Report sheds some light onto what happened, but most of it, as intended, remains in the dark, and real accountability is still as far away as it was before this Report was issued.

Russ Feingold said in a statement that "This report leaves no doubt that the warrantless wiretapping program was blatantly illegal and an unconstitutional assertion of executive power."

• The United States government, under two Presidents, blocked any investigation into the mass slaughter of perhaps thousands of Afghans by a warlord.

American officials had been reluctant to pursue an investigation — sought by officials from the F.B.I., the State Department, the Red Cross and human rights groups — because the warlord, Gen. Abdul Rashid Dostum, was on the payroll of the C.I.A. and his militia worked closely with United States Special Forces in 2001, several officials said. They said the United States also worried about undermining the American-supported government of President Hamid Karzai, in which General Dostum had served as a defense official.

“At the White House, nobody said no to an investigation, but nobody ever said yes, either,” said Pierre Prosper, the former American ambassador for war crimes issues. “The first reaction of everybody there was, ‘Oh, this is a sensitive issue; this is a touchy issue politically.’ ”

It is not clear how — or if — the Obama administration will address the issue. But in recent weeks, State Department officials have quietly tried to thwart General Dostum’s reappointment as military chief of staff to the president, according to several senior officials, and suggested that the administration might not be hostile to an inquiry.

These are the prisoners stuffed into metal containers without food and water, and left helpless as guards shot into the containers. And we never investigated it, despite having a military presence in the country for seven years. Agence France Press has more.

• And then there's this:

The Central Intelligence Agency withheld information about a secret counterterrorism program from Congress for eight years on direct orders from former Vice President Dick Cheney, the agency’s director, Leon E. Panetta, has told the Senate and House intelligence committees, two people with direct knowledge of the matter said Saturday.

The report that Mr. Cheney was behind the decision to conceal the still-unidentified program from Congress deepened the mystery surrounding it, suggesting that the Bush administration had put a high priority on the program and its secrecy.

Mr. Panetta, who ended the program when he first learned of its existence from subordinates on June 23, briefed the two intelligence committees about it in separate closed sessions the next day.

Remember that we have no idea what this program is, although there are some indications that this may be the infamous executive assassination ring. So because of the lack of accountability, the Vice President can order the CIA to keep a sensitive counter-terrorism program completely secret and therefore beyond oversight.

I would offer that all of these programs and secret plans and extra-Constitutional deployment of powers, well summarized here by Tom Watson, are a direct result of the complete lack of accountability for the actions taken by officials in the executive branch. The processes of oversight through the Congress and the Inspector General reports offer little opportunity for sanction. The expansion of executive power over the years gives many opportunities to short-circuit accountability through invocations of state secrets or national security. So without an independent prosecutor with subpoena power allowed to follow out the dictates of equal justice under the law, we will see an increase of air into the balloon, more and more, until it consumes us all. We have to pop the unaccountability bubble.

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