While repeatedly stressing that he wants to look forward, President Obama two weeks ago left the door ajar for looking back. Under pressure from pundits and fellow Democrats, he charged his attorney general, Eric Holder, with determining whether laws were broken in formulating and administering the Bush administration’s interrogation policies. Much as many involved in the debate say that it’s not about politics, the political lines about whether to prosecute are fairly clear. As a legal matter, however, the situation is much murkier. If Holder decides to prosecute—and his boss would surely rather he didn’t—he had better be close to certain that he can win. But if he decides not to, his legal and constitutional reasoning has to be airtight enough to keep the sound of those calling for prosecution to a dull roar. In other words, not an easy job.
Does he have a case? That depends. Of the possible prosecutions, those against the Bush lawyers who authorized torture—John Yoo, Jay Bybee, and Steven Bradbury—are probably the most difficult. The lawyers could be charged for conspiring to violate the federal anti-torture statute, which has an eight-year statute of limitations. Passed in 1994, the law defines torture and sets out a range of harsh punishments—from twenty years to the death penalty if the torture results in death—for those who commit acts of torture outside the United States. The charge would be that the Bush lawyers conspired to violate the anti-torture law when they said waterboarding wasn’t the kind of intentional infliction of “severe physical or mental pain or suffering” that the law forbids. But to prove the charge, a prosecutor would have to establish that the lawyers knew the advice they were giving was wrong but gave it anyway because they were determined to justify torture by any means necessary. “The lawyers are pretty hard to prosecute unless you regard their legal advice as a sham,” says Stephen Saltzburg of the George Washington University Law School. “For better or worse, the people who wrote the opinions are true believers—they actually believe the advice they gave, which means the advice may have been unreasonable, but it’s not criminal.”
Of course, the biggest fish are not the lawyers. The Senate has released documents identifying a series of high Bush officials who attended meetings on interrogation—from Dick Cheney and Condoleezza Rice to John Ashcroft and George Tenet. All of them could be investigated and potentially charged with conspiring to violate the anti-torture statute by authorizing and ordering waterboarding. (They could also be charged with violating another federal law ratifying the Geneva Conventions’ definition of war crimes, but that has a shorter statute of limitations.) But here, again, convictions would likely be difficult.
Imagine, if you will, a prosecution against Dick Cheney. He’s not immune from prosecution—vice-presidents, unlike presidents, aren’t immune from suits in office, and even presidential immunity expires on the last day of the administration. But if Cheney were charged with conspiring to torture, he would immediately claim that he had received congressional authorization. For his part, Bush said in his exit interview on Larry King that he relied in good faith on legal advice from the Justice Department. The case might well turn on the question of whether a reasonable person could conclude that waterboarding is not torture. A prosecutor might also focus on the fact that there were several months between the time Abu Zubaydah was seized by U.S. officials on March 28, 2002, and the August 1, 2002, Justice Department opinion authorizing waterboarding against him. According to a Senate Intelligence Committee report, Condoleezza Rice, then Bush’s national-security adviser, verbally approved the CIA’s request to waterboard Abu Zubaydah in July. A special prosecutor could investigate whether Cheney, Rice, or others knowingly violated the anti-torture statutes during this period.
Cheney’s first gambit would be to try to resist turning over documents about what was said in meetings. He would throw up every roadblock possible, including, perhaps, arguing that the documents aren’t the kinds of “executive records” covered by the Presidential Records Act, passed after Watergate to prevent sitting and former presidents and vice-presidents from destroying their papers. The Obama Justice Department might at some point have to decide whether to intervene, and it might be torn between its recent defense of the “state secrets” doctrine and Obama’s subsequent statement that he thinks the doctrine is too broad. The result might be a nightmarishly complicated discovery process and an epic legal battle in which Obama could, in some areas, find himself on Cheney’s side.
If he lost that battle, Cheney would fall back on his all-purpose argument: Even if he had violated the torture statute, he would argue, the president’s inherent authority as commander-in-chief gives the White House the power to ignore laws that constrain his authority to do whatever he thinks necessary to protect the nation in the war on terror. “You could peddle the theory that Cheney knew he was on shaky constitutional ground and found lawyers he knew to be outlandish,” says Daniel Richman of Columbia Law School. “But whatever people say about Cheney, few people think he didn’t believe in his own arguments.” Essentially, a prosecutor would have to prove that they didn’t believe their own claims that they had the authority to waterboard if they felt national security demanded it.
For these reasons, even staunch advocates of legal accountability for the Bush administration’s interrogation policy don’t believe that a straight war-crimes approach has a high chance of success. Thanks to politicians from Richard Nixon to Bill Clinton, it’s now a Washington truism that officials are more likely to be caught by the cover-up than the crime, and Scott Horton, a contributing editor at Harper’s, suggests that there are plenty of places where special prosecutors might look for false statements to Congress or other investigative bodies that could lead to felony indictments. “People screaming for war-crimes prosecutions will be disappointed, but obstruction-of-justice prosecutions are probably a reasonable outcome,” says Horton.
Indeed, the Bush administration had itself already begun an investigation along these lines. Last year, Bush’s attorney general, Michael Mukasey, appointed John Durham, a veteran federal prosecutor, to investigate the destruction of 92 CIA interrogation videos in 2005. Durham hasn’t yet completed his investigation, and the ACLU has called on Holder to expand Durham’s mandate to investigate the legality of the CIA interrogations themselves. “In a practical sense, it would be the easiest thing to do,” says Christopher Anders, senior legislative counsel of the ACLU, “since any good prosecutor would think that whoever ordered the interrogations may have had an interest in destroying the videotapes as well.”
But the legal niceties may end up being someone else’s problem. The central question for Holder is likely to be whether to appoint a special prosecutor. But there are many reasons he may be reluctant to do so. For one thing, in an issue such as this, involving national security, the possibilities for clashes between the Justice Department and a special prosecutor are endlessly multiplied. Just this week, for instance, the federal appeals court in California rejected the Obama administration’s attempt to halt a lawsuit involving extraordinary rendition on the grounds that it threatened national security and “state secrets.”
And Holder has another reason to fear the special-prosecutor process. In 1998, as deputy attorney general for President Clinton, Holder and then–Attorney General Janet Reno agreed to independent counsel Ken Starr’s request to expand his jurisdiction from investigating Whitewater to investigating the president’s trysts with Monica Lewinsky. The decision ultimately precipitated Clinton’s impeachment. Nevertheless, external events may force Holder’s hand. For example, a European court might indict the Bush torture lawyers and officials for war crimes under principles of “universal jurisdiction.” Although the Obama administration pressured the Spanish attorney general to resist these indictments, a court in Spain or elsewhere might well bring them anyway. “I got a detailed description of the face-to-face briefing between U.S. diplomats and Spanish prosecutors, who said, ‘This case will terminate if the U.S. Department of Justice opens an investigation on their own,’ ” says Horton.
There will also be pressure from within the Justice Department itself. The Office of Professional Responsibility will at some point release a report on whether the Bush lawyers acted unethically in justifying torture. If the report is as damning as some insiders expect, local bar associations might open investigations about whether to deprive Yoo, Bybee, or Bradbury of their licenses to practice law. Although a judge does not have to be a member of the bar, if a disciplinary authority went so far as to disbar Bybee, for example, Congress might consider impeachment proceedings. In the past, judicial impeachments have been limited to cases involving perjury or corruption, but it’s possible that Congress could conclude that a lawyer could corrupt himself by giving reckless and unreasonable legal advice. If Bybee were actually impeached by the House of Representatives, let alone convicted by the Senate, the pressure on Holder will rise.
As Holder decides whether to appoint a special prosecutor, he’ll have to weigh the difficulty of securing convictions and Obama’s stated desire to “look forward as opposed to looking backward” against the clamor for public accountability. But at some point, the forces calling for a special prosecutor may become too strong to resist. And if that happens, as Holder well knows, all bets are off.
E-mail: jrosen@law.gwu.edu.