Who’s going to prosecute the torture cases?

They’ll need a Special Counsel. How about William Howard Taft IV?

You’re free to believe that Eric Holder didn’t know, when he said flat-out at his confirmation hearing that waterboarding is torture, that doing so would commit him to at least investigating the BushCo waterboarding-sleep deprivation-stress positions-solitary confinement spree, because of our treaty obligations under the Convention Against Torture. And you’re also free to believe that his handlers hadn’t thought the problem through, and that he hadn’t cleared his answer with the President.

I however, am free to believe otherwise. I doubt that, in the end, any of the actual torturers will face a jury, but the folks who gave the orders and provided the legal cover are likely to go through several very bad months at the very least, quite possibly followed by several VERY bad years.

Holder will order an investigation, the investigation will come back with the conclusion that there is enough evidence to convict X, Y, and Z (where the value of X might well be “Cheney”) of conspiracy to torture, Holder will reluctantly say that the law must take its course, because the treaty strips him of prosecutorial discretion if the only grounds for not prosecuting are policy and politics rather than doubt about guilt or about the evidence to prove it, Obama will even more reluctantly say that, much as he’d prefer to look forward rather than back, he swore to take care that the laws be faithfully executed and it would be inappropriate for him to interfere with justice.

But the precedent of having the political appointee of one President accuse members of his predecessor’s administration of official crimes is not a comfortable one. So Holder will want to outsource the prosecution. Patrick Fitzgerald’s name has been thrown around quite a lot, but he’s going to be rather busy in Illinois for quite a while.

One obvious name: William Howard Taft IV. He fought a strong battle against torture from his Bush-appointed post as the senior legal adviser at State, one of a string of senior jobs he’s held in Republican administrations. Best of all, even the wingnuts are going to have a hard time claiming that someone with that name is a partisan Democrat. On the other hand, it’s possible that Taft will be a witness in the case, which obviously would rule him out.

Other names? Someone from the JAG corps?

Comments are busted, but I’ll compile the emails I get into a follow-up post.

Footnote Volokh Conspirator Eric Posner says that since the other parties to the Convention Against Torture are unlikely to do anything to enforce its provisions, Holder has full discretion to decline prosecution on political or policy grounds. But a duly ratified treaty is the law of the land, and Holder is sworn to uphold the law. Could he get away with not prosecuting, in the face of enough evidence to convict? Sure. But he’d be violating his oath of office.

Update Posner replies that, because a Senate reservation made the CAT non-self-executing, Holder is under no legal obligation to prosecute. Posner is a law prof and I’m not, so the betting ought to be on his being right on this until some actual expert weighs in on my side. But I think part of our disagreement is that Posner takes a purely legal-realist view of what “law” is, under which nothing is law that won’t in fact bring down unpleasant legal consequences on the head of whoever violates it. He also takes a purely cynical view of the functions of prosecution. ” I think there’s a perfectly good sense of the word “law” in which the United States has a legal obligation to comply with treaties, even if there is no international enforcement mechanism behind them. Isn’t the idea that treaties are mere scraps of paper somewhat … European and quaint?

Stepping back from the legal argument, it seems clear that Posner, in predicting that the torturers will go unpunished and providing various legal justifications for not punishing them is indicating his wishes as well as his analysis. Posner, his fellow Conspirators, their commenters, and almost all of the Red team want the torturers to get away with it. That’s as good a reason for sticking with the Blue team as I can easily think of.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com