Given President Obama's stated desire to look forward, not
backward, with respect to interrogation policy and practice, news
reports that Attorney General Holder is seriously considering
appointing a special prosecutor to determine whether criminal
charges should be brought against some CIA interrogators raise a
host of questions and concerns. But the answer to the most
important question--whether Holder should appoint a special
prosecutor--is not even debatable: Holder most definitely should
not appoint a special prosecutor, even assuming a
criminal investigation is warranted.
Special Prosecutor: The Wrong
Choice
Assuming there are grounds to investigate whether individual CIA
interrogators exceeded the scope of their instructions and legal
guidance, there are several reasons why the appointment of a
"special prosecutor" with power to bring criminal charges is the
wrong means to investigate, prosecute, or bring about policy
changes.
First, the activities of a special prosecutor are likely to be
duplicative of congressional and potential criminal investigations
already in progress--and this is particularly true if the goal is
investigation and fact-finding. For example, former Attorney
General Michael Mukasey ordered an investigation into the
destruction of videotapes of CIA interrogations of a handful of
high value detainees, an investigation that is still being
undertaken by veteran federal prosecutor John Durham. Additionally,
the Senate Select Committee on Intelligence is conducting a
wide-ranging investigation into all aspects of the CIA's
interrogation and detention program.
There is every reason to expect that a non-criminal,
congressional investigation (that granted immunity from
prosecution) would uncover more information--even if it were a
classified investigation. If the purpose of such an investigation
were to really uncover facts on which to base future policy, this
would be the obvious choice. Of course, there is always the danger
that such an inquiry, conducted by politicians, would itself
devolve into a political quagmire. But judging from publicly
available information, the investigation currently being conducted
by the Senate Select Committee on Intelligence, which set out to
study the CIA's detention and interrogation program, suggests that
such an inquiry can be conducted in a fair manner, all the while
protecting sensitive national security matters. The only
"disadvantage" to the Senate Committee, or any other congressional
committee, providing adequate safeguards to protect means, methods,
and other classified materials is that the bloodthirsty partisans
most likely would not have scalps to dangle before the mob.
The duplication of efforts raises issues beyond the non-trivial
expenditure of money and prosecutorial time. Both of the pending
investigations require the CIA to cooperate with the inquiries and
have necessarily caused disruptions to the ability of the
intelligence community to carry out its lawful mission. Any
additional investigation must take into account the costs--both to
the public fisc and to scarce intelligence resources--in conducting
a sweeping investigation. Prosecutors answerable directly to the
Attorney General are usually more restrained in their activities
than independent prosecutors, who operate with built-in incentives
to extend investigations with less concern as to legitimate
government interests in, for example, privilege and to spend
whatever resources necessary to bring about some prosecution and
thereby justify their positions. By contrast, the Attorney General,
who coordinates with the intelligence agencies about current
intelligence gathering operations, is in a better position to
assess claims and make decisions regarding the negative impact of
an investigation on current and future operations and has to
balance the resource allocation associated with this one
prosecution against other departmental priorities. The Attorney
General's supervision is therefore a requisite check to assure that
the government's interests--not just in terms of the investigation
and resource allocation but in continued intelligence
operations--are vindicated.
"This Wolf Comes as a Wolf"
Second, there is no good reason why the Holder Justice
Department could not conduct the investigation at Main Justice with
senior prosecutors who report to him through the normal chain of
command. The ordinary justifications for utilizing a special
prosecutor--that an investigation would be or would have the
appearance of being compromised by virtue of the targets of the
investigation holding critical offices in the Administration or
that there is a substantial conflict of interest--simply do not
apply to the current investigation of acts committed in a prior
Administration. Although Holder might try to argue that an
investigation of prior Administration practices would raise issues
of bias, such a theory is undermined by the fact that reports of
the potential investigation suggest that it would evaluate
individual, front-line CIA interrogators as to whether they
exceeded the official policy of the prior
Administration. Any conflict claims therefore seem tenuous at
best.
The opposite concern is far greater as Justice Antonin Scalia
prophetically warned in his dissent in Morrison v. Olson
(1988). In questioning the constitutionality of the former (now
expired) independent counsel law, he wryly observed that some
questionable practices "come before the Court clad, so to speak, in
sheep's clothing." The practice of appointing independent counsels
was not such an instance: "This wolf comes as a wolf."
Although the "independent counsels" under the expired statute
were admittedly worse than special counsels in constitutional
dimensions, Scalia's dissent is worth careful review because the
dangers of insulating prosecutors from the Attorney General's
control are strikingly similar. His dissent is a chilling reminder
of how such an Ahab-like prosecutor has none of the institutional
constraints or perspective of a normal prosecutor and all the wrong
incentives to become the instruments of tyranny. That some
independent counsel exercised proper control is much more a
testament of their restraint and is the exception that proves the
rule.
Highly Sensitive Information at
Stake
Third, before commencing any criminal investigation, the
Department of Justice (DOJ) must give due consideration to any and
all inevitable defenses that are likely to be asserted by
individuals involved in the CIA interrogation and detention
program. CIA interrogators are likely to raise certain defenses or
seek the introduction of certain evidence that may require the
government to consider invoking the States Secret doctrine or
executive privilege. For example, it is difficult to demonstrate
that an action transgressed applicable policies and orders without
knowing what those very specific policies and orders are. In
addition to the instructions and legal standards that the
government will assert existed, the defendant may seek wide-ranging
discovery to prove that other orders, instructions, or legal
standards existed that somehow re-defined or countermanded those
that the government asserts were controlling.
The collection and introduction of this evidence raises serious
questions about whether and how the government should reveal this
highly sensitive information. The questions of how to safeguard
classified intelligence information is one that the Attorney
General will have to make, and therefore it is better that any
investigation, if warranted, be carried out by those more directly
accountable to him. This also has the virtue of assuring that
decisions made have an element of political accountability--the
President and the Attorney General should not be able to pass the
buck on these sensitive questions, claiming that the scope and
course of the investigation are somehow governed by a
non-politically accountable special prosecutor.
A Partisan Pandora's Box
Fourth, there are prudential concerns that arise if the
investigation turns into or is perceived in the intelligence
services as constituting a "witch hunt." This would have corrosive
effects on the morale and willingness of front-line interrogators
and other intelligence officers to serve in the future--effects
that President Obama tried to avoid when he spoke at CIA
headquarters last spring, when he seemed to indicate that he would
protect those who conducted the interrogations from post-hoc
investigations. These are serious issues that would extend to
agencies beyond the CIA and should be considered again in more
detail.
It is also important to briefly note the legitimate concerns by
both liberals and conservatives that the criminalization of policy
differences that such investigation heralds will further inflame
partisan battle lines and prevent progress on a host of issues,
including the conduct of the current wars and the detention and
trials of unprivileged belligerents. President Obama's senior
advisers, who themselves will one day be former Administration
officials, have reason to share this concern even if the hard-core,
anti-war left agitates continuously to see former military and CIA
officials in prison jumpsuits.
Yet some partisans in DOJ may cynically see the "special
prosecutor" or a similar appointment as a means of having it both
ways: in short, a way to please the anti-war base while sparing the
Administration the consequences of doing so. The opposite is more
likely. Such an appointment would have the negative consequences
reasonable people fear, and the blame would also fall on the
Administration for inflaming partisan infighting and damage to
current and future Obama Administration officers and employees. The
only difference would be that it would be much harder for the Obama
Justice Department to contain the damage once a special prosecutor
process is set in motion.
A Narrow and Focused Investigation
Any criminal investigation of individuals associated with the
CIA detention and interrogation program must be conducted in a
politically accountable, transparent fashion. The Attorney General
must be the one who personally authorizes any criminal
investigation and subsequent trial. He, with the President, must
also bear the responsibility for any direct or collateral results
of such an investigation. Additionally, the Attorney General should
be directly responsible for any negative impact such an
investigation and trial will have on the intelligence community and
the willingness of that community to carry out all lawful acts in
support of America's defense.
If the Attorney General decides, in the exercise of sound
prosecutorial discretion and with due concern for legitimate,
national security concerns, that a criminal investigation is
warranted, he should reject the appointment of a "special
prosecutor." History has shown that special prosecutors are
unaccountable and often widen the scope of their initial charge
well past that contemplated by anyone. Rather, the Attorney General
should appoint an experienced career prosecutor currently working
for the DOJ who will report directly to the Attorney General at all
critical stages of the investigation and whose scope of
investigation is narrow and carefully focused.
Todd
Gaziano is Director and Robert Alt is Deputy Director of the Center for
Legal and Judicial Studies at The Heritage Foundation.