Justice Department Will Decide Whether To Prosecute Interrogators
A basic but important point that’s getting lost in all the noise:
Despite the widespread belief that Obama granted some sort of blanket immunity to interrogators connected to Bush’s torture program, it’s the Justice Department that will ultimately decide whether to prosecute interrogators on an individual basis.
The Justice Department confirmed this to me last night. Obama, as you know, recently said that interrogators should not be prosecuted if they “carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House.”
But the question is, Who decides where those four corners lie, and who decides whether individual interrogators operated within them? I asked Justice Department spokesperson Matthew Miller to confirm that these decisions fall to Justice, and he replied:
“The Justice Department makes decisions on Federal prosecutions.”
In a sense, this is a no-brainer, or civics 101: Of course Justice, not the White House, decides who gets prosecuted or who doesn’t. But in the current context, it’s an important point to keep in mind. As pressure grows for some sort of probe into the torture program, and as evidence mounts that some interrogators may have gone rogue, more detail about the behavior of interrogators is all but certain to come out.
It will fall to Justice to make legal evaluations of that behavior and decide whether or not individual interrogators operated within those four corners and where those four corners actually lie. Which is to say, the notion that the interrogators have some kind of blanket immunity — something Obama never really quite said — is not true in any meaningful sense. Something to bear in mind.
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I get the feeling that the WH would like to see this whole thing go away. The Justice Dept may very well make the decision, but the Administration’s opinions on the matter will probably factor in to the ultimate decision.
well, yes, the WH will prob have some sway, but the overall point is that individual interrogator behavior is going to be examined with an eye for lawbreaking
Greg
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I hear Ezra Klein will be blogging here now too. Is that correct?
David Kurtz points out the aside in the Soufan op-ed in today’s NYT
[ http://www.nytimes.com/2009/04/23/opinion/23soufan.html?_r=2&partner=rss&emc=rss ]–that contractors are the ones who asked for torture to be allowed. Maybe part of this story will go to the extensive use of contractors by Bush Cheney to circumvent the unwillingness of government officials and the military to violate established rules and methods of operation.
WH shouldn’t have any sway at all, by law. If Obama truly believes in immunity for the interrogators and DOJ thinks differently, it shouldn’t matter at all. Not one single bit. Remember, as Greenwald cited, how Nixon’s AG ignored him when he wanted the Special Prosecutor fired. If in fact the DOJ wants to prosecute interrogators based on reasonable evidence/findings then they should be able to without any pressure from anyone–or, as Clinton noted yesterday in a “nonpartisan setting.”
Even if the DOJ does its due diligence and, by some miracle, finds nothing that they can prosecute anyone for, and Obama in fact IS in favor of prosecutions and tries to pressure the DOJ into going along with him, he is actually obstructing justice (as much as all of us, myself included, would hate the outcome). Due process is all I’m saying, and no amount of WH sway should be able to influence it at all.
Though the odds of the DOJ finding absolutely nothing to prosecute over is slim to none. I am just playing theoreticals, that’s all.
I guess I didn’t leave this comment; just thought about it.
Yeah, Greg – thanks, finally. I’ve only been saying that for weeks. All the pearl-twisting over Obama was so silly = it’s not his decision and never was. Presidents don’t decide who the AG is going to prosecute. They set policy for their AGs, but that’s it.
It’s like the marijuana legalization thing – everybody got upset cause Obama said it wasn’t a good fix for the economy – he said nothing about legalization and in fact, that is not up to the president in any way shape or form. That’s Congress and state legislatures.
Great work.
In many ways President Obama is restoring the rule of law and our Constitution. His response so far to the torture issue has been to place the required reviews where they should be place.
The DOJ is the entity charged with determining is a crime has been committed and if that crime should be prosecuted. President Obama has made clear that he supports this DOJ role.
Congress is the entity charged with oversight of the Executive branch and has the responsibility to instigate, frame and enable any regular or special investigation of the torture issue or any other long-overdue oversight of the Bush years. President Obama has made clear that he will support Congress in fulfilling this Constitutional responsibility.
What he will not do is continue the dangerous theory of the Unitary Executive. He will not buy into the spin or hype that whatever he says is the law. Hence he offers his opinion in careful statements that underscore the importance of the separations of power and the role of the DOJ.
The Bush years have conditioned too many to accept the Unitary Executive theory as fact. Perhaps the greatest thing Obama is doing here is pushing back on that myth.
Cheers
Rachel Maddow did a really wonderful opening piece last night using the device of wikipedia’s “disambiguation” to draw out the distinctions between the programs carried out by the CIA and those carried out by the Pentagon (her skills and goals as an educator are increasingly gaining notice, and for good reason).
But she didn’t mention another aspect in here which AllButCertain smartly tosses in…contractors.
A happy consequence of further investigations and revelations (given that the universe unfolds as I think it ought) will be further degradation of the reputation of corporate (mercenary) participation in war operations.
In a sense, this is a no-brainer, or civics 101: Of course Justice, not the White House, decides who gets prosecuted or who doesn’t.
One of the reasons this isn’t as obvious as it should be is that it wasn’t the case for the past eight years. Our sense of normal has been badly abused, and it will take a lot more officials speaking out to reinforce “civics 101″ in the public mind.
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