How It's Done
Does everyone remember this?
The Washington Post, January 3rd, 1994
Senate Minority Leader Robert J. Dole (R-Kan.) and House Minority Whip Newt Gingrich (R-Ga.) yesterday urged Attorney General Janet Reno to appoint an independent counsel to investigate any involvement by President Clinton with a failed Arkansas savings and loan firm and a real estate venture in the state.
There was a time when the Republican congress, in the majority and in minority, was calling for independent counsels every five minutes for such threats to the nation as firing an white house employee and personal real estate dealings that took place years before the president was elected. (not to mention personal indiscretions.) The right wing noise machine would go crazy and the opposition leaders in congress would raise holy hell until the president had no choice but to ask the Attorney General to name an independent counsel just to shut everyone up for a while.
(The Independent counsel statute was created so the executive branch wouldn't have to investigate itself, the very definition of conflict of interest. After three presidencies, the statute was allowed to die --- mostly because the Republicans proved that they would use it as a retributional nuclear political weapon if they had the chance.)
In the last administration, there was enough of an outcry over the leak of a CIA operative that even the Bush administration had to have his AG appoint a special prosecutor. They appointed a non-partisan professional who managed to keep the investigation and trial buttoned up, thus showing that the right special prosecutor could run a political case without joining the partisan mudfight. Although the usual legal wingnuts tried to persuade people that the Fitzgerald investigation was a Ken Starr Chamber, everyone knew it wasn't, and it proved that it could be done if the prosecutor wasn't an ideologue and a tool.
All of these cases were brought about by public and political pressure. It occurs to me that this is the only way it can happen in our broken political system --- that a president never willingly investigates itself, of course, but also never wants to investigate its predecessor either (the Democrats usually for fear of starting an endless vendetta, the Republicans usually for fear of setting a precedent.) They must be made to do it.
With respect to the Bush torture regime, it's obviously very difficult for the administration to take on the intelligence community unless there is a large public constituency demanding action. It's risky on all the levels mentioned above but also risks alienating a very important bureaucracy with a lot of very special power. I recognize that it's not easy, especially for a Democrat, although I think it's so important to the future security of the nation that I would have hoped the president would use some of his political capital to prove that the United States is a country of laws not men.
However, I have to wonder if by releasing the memos they aren't at least obliquely asking for the public to "make" them do it. They could have kept them secret, after all. If there were significant public pressure as well as pressure from congress, they would have enough cover to launch an investigation with the assurance they aren't going to go the Bad Apple route.
I obviously have no idea whether they would welcome such a thing. But we should do it anyway. I know that if the shoe were on the other foot, the right would crank up the noise machine immediately and gin up a hissy fit of massive proportions over something like this, creating a sense of building crisis that the media would then use to put pressure on the president. It's how they make these things happen. (I think where this breaks down on our side is the lack of working relationships with congressional leaders, many of whom still see the base as disruptive and ignorant. That's going to take some long term work to change.)
But we must try. These memos are so disgustingly immoral and thus so dangerous to our future security that we can't just let it go. FDL is first out of the box with a petition to Attorney General Holder to appoint a special prosecutor. It's a start. I also think it would be a good idea to launch an "Impeach the Torture Judge" movement against Jay Bybee and encourage the congress to do some serious investigations, not show hearings so they can blather on about how much they all respect each other. There's no reason to only go at this from one angle.
But whatever happens, it seems to me that any official sanctions for torture will not happen without systematic grassroots action. They don't investigate their own unless the people make it impossible for them not to. It's just how it works.
Greenwald put it this way:
Obama did the right thing by releasing these memos, providing all the information and impetus the citizenry should need to demand investigations and prosecutions. But it is up to citizens to demand that the rule of law be applied.
The ACLU is also calling for a Special Prosecutor.
You can sign FDLs petition here.