Is the Justice Department Serious About Torture Trials?

In an effort to make Clinton's confederate in the corrupt pardon of Mark Rich look like an independent agent, Newsweek published an Eric Holder fluff piece suggesting that despite the president's desire to let the issue die, the hard hitting free agent attorney general might seek to prosecute those who engaged in or permitted torture of captured terrorists under the Bush administration.

Holder, 58, may be on the verge of asserting his independence in a profound way. Four knowledgeable sources tell Newsweek that he is now leaning toward appointing a prosecutor to investigate the Bush administration's brutal interrogation practices, something the president has been reluctant to do. While no final decision has been made, an announcement could come in a matter of weeks, say these sources, who decline to be identified discussing a sensitive law-enforcement matter. Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama's domestic priorities, including health care and energy reform. Holder knows all this, and he has been wrestling with the question for months. "I hope that whatever decision I make would not have a negative impact on the president's agenda," he says. "But that can't be a part of my decision."

Tom Maguire believes the president's agenda is on life support, and this would be like removing the IV tubes. He urges the administration to "bring it on."

Like many of the shrewder online commentators, Maguire believes this hint of prosecution is not terribly serious but is instead being floated to keep alive the waning ardor of the far left. After all, they rallied to the Obama banner because he took positions on defense matters far to the left of Hillary Clinton, only to see over and over again that -- once handed the reins of power and the responsibilities that go with it -- Obama found himself compelled to continue the policies he had so viciously attacked with their fervent support just months ago.

In any event, it is hard to believe that a public, already showing signs of displeasure at the failing and overreaching moves of the president relating to economic matters, would really be distracted by show trials. Such trials can only remind them of what Bush's successful pursuit of the terrorists let them forget: The prior administration did everything it could with a dreadfully inadequate bureaucracy to prevent further attacks on U.S. soil. And it succeeded in that effort despite the Democratic Party's unending efforts to weaken our defenses.

There is a hint that Holder does not have forever to decide whether to proceed. The ACLU, a prime mover in the effort to prosecute former Bush administration officials (and even further gut our intelligence gathering efforts), noted some time ago that the statute of limitations on such a prosecution would run out in spring of 2010. Given the amount of time it would take to gear up a proper investigation, it does seem to be now or never:

There is Only a Little More than a Year Left in the Statute of Limitations Period for Certain Alleged Crimes of Torture. The federal statutes of limitation are a potential problem in investigating and prosecuting certain torture crimes.  Although the general federal statute of limitation for most federal crimes is five years, there is no limitations period when death resulted from the crime, and there is an eight-year period for violations of the federal Anti-Torture Act. The ICRC report and the Justice Department Inspector General report on the FBI's role in interrogations both provide substantial details on the torture and abuse of Abu Zubaydah in the spring and summer of 2002, prior to the issuance of the August 1, 2002 OLC opinions. The eight-year statute of limitation period for Anti-Torture Act charges related to crimes allegedly committed in spring 2002 will expire in spring 2010.  As a result, a prosecutor has only a little more than a year from today to bring charges for some important and well-documented alleged torture or abuse incidents.

Congressman John Conyers, whose wife is now serving time for a felony bribery conviction, had earlier decided that this was such dastardly conduct that the statute should be amended and extended from eight to ten years.

House Judiciary Committee Chairman John Conyers has proposed extending to 10 years the statute of limitations on war crimes, torture, and domestic surveillance in the event an investigation into the Bush administration's controversial policies turns up prosecutable evidence against former officials after statute of limitations laws currently on the books expire.

Congress should immediately consider "extending the statute of limitations for potential violations of the torture statute, war crimes statute, laws prohibiting warrantless domestic surveillance, or for crimes committed against persons in United States military custody or CIA custody to ten years."

It would be a good test of the will of Congress to bring the Conyers bill up for a vote. I wouldn't bet on its passage.

My favorite law professor, Cornell's William Jacobson, sounds an adult note on the issue which, despite my baser instincts, sounds right:

The Dems are swinging in the dark. They will hit someone, it's just not clear who that someone will be. My guess is that it will not be the Bush administration. As I predicted months ago, the Dems will devour Obama's agenda, and damage at least some of their own along the way for going along with programs they now claim were illegal.

Politically I'd say "go get 'em," except that the consequences will be severe in terms of our intelligence capabilities. So I'll ask the Democrats to be mature leaders, not vindictive brats who are trying to settle political scores at the price of damaging our intelligence agencies.

There, I said it. Next time, I'll just say "I told you so."

And NRO's Mark Thiessen shows the first swing hit Senator Chuck Schumer:

Now, over the weekend we learn that Attorney General Eric Holder is considering appointing a special prosecutor to investigate CIA operatives who interrogated senior al-Qaeda terrorists and got them to give up information that stopped new terrorist attacks. On Meet the Press, Sen. Charles Schumer said that this was the "right thing to do." This is the same Senator Schumer who declared in a hearing a few years back that of course we should torture people if we knew they had information on an imminent attack.

Things are liable to get very interesting, very soon.