The topic below was originally posted on my blog, the Intrepid Liberal Journal.

Former federal prosecutor Elizabeth de la Vega has recently made news urging that we don't rush into appointing a special prosecutor to investigate crimes of torture during George W. Bush's presidency. In a provocative April 20th post entitled "Of Black Holes and Radio Silence," Ms. de la Vega wrote:

"There is no doubt that sometime in 2002 - if not before - Bush administration officials and their lawyers began orchestrating a torture campaign, which they calculatedly attempted to justify through specious legal memos. They continued to abuse prisoners, and to conceal that mistreatment from Congress and the public, through at least 2008. In all of this conduct, they have committed grave crimes for which they must be held accountable. I believe this to be a national imperative of the highest order."

However, she also argues that,

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"My ship Liberty sailed away on a bloody red horizon
The groundskeeper opened the gates and let the wild dogs run."
- Bruce Springsteen, "Livin' in the Future"

When the highest officials of our nation flung open the gates of law and morality and let the wild dogs of torture run, they set in motion a constellation of potentially-indictable federal crimes. While I do not think a grand jury investigation into those violations should be publicly initiated right now, (for strategic reasons discussed here), I do agree entirely with Senator Sheldon Whitehouse that the Attorney General must not rule out prosecutions for these violations. In the May 4, 2009, National Law Journal, the Democrat from Rhode Island writes: "The factual record ... has not been fully developed and reviewed - and no good prosecutor would make a final determination until all the facts are in." As usual, the former US Attorney has it exactly right. No responsible prosecutor would do that and, indeed, as long as the record is unfolding, the Attorney General wouldn't be able to render any meaningful final "verdict" of no prosecution even if he wanted to. (And, certainly, no potential defendant could hold him to it.) So - regardless of what the prognosis for prosecution appears to be on any given day - it is critical to keep those revelations coming, as well as to support proposals for a non-partisan commission that will publicly air all the facts, and, most important, not give up on eventual indictments.

So Many Crimes, but How Much Time?

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A former prosecutor examines the special prosecutor debate.

There is no doubt that sometime in 2002 - if not before - Bush administration officials and their lawyers began orchestrating a torture campaign, which they calculatedly attempted to justify through specious legal memos. They continued to abuse prisoners, and to conceal that mistreatment from Congress and the public, through at least 2008. In all of this conduct, they have committed grave crimes for which they must be held accountable. I believe this to be a national imperative of the highest order. I have pored over every available book and report about torture, disturbing as they are, and I have read the lurid facts and twisted legal reasoning laid out in the Office of Legal Counsel torture memos just released by the White House. I am increasingly outraged by the day, disgusted by years of inaction, and impatient for results. Consequently, I would like nothing more than to join with so many friends and associates whom I respect in calling for immediate appointment of a special prosecutor.

Unfortunately, however, I can't do it. Not yet. We must have a prosecution eventually, but we are not legally required to publicly initiate it now and we should not, as justifiable as it is. I'm not concerned about political fallout. What's good or bad for either party has no legitimate place in this calculus. My sole consideration is litigation strategy: I want us to succeed. And our best hope of doing that is to unflinchingly assess - just as any lawyer would do when contemplating choices of action in a case - what we would have tomorrow if we got what we think we want today. We should obviously think twice about pursuing an intermediate goal, however satisfying it may appear, if it would be counterproductive in the long term. There are times when it's smarter to wait before taking a prosecutive step and this is one of them.

I know that what I have to say may not be popular, but the stakes here are too high to ignore "bad facts" - i.e., those that might run counter to our position or the course we've decided to take. So, it's better, I think, for me to tell you what I know to be true about grand jury investigations and the requisites of preparing a criminal case for indictment and trial - even though you might not like to hear it. Then you can make this assessment yourselves.

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