POLITICS MAY 15, 2009
I agree with most of Jeffrey Rosen’s commentary on how to proceed with a potential torture investigation (“Truth or Dare”; May 20, 2009), but take issue with some of his conclusions. Yes, indeed: In order to successfully prosecute the authors of the “torture memos”--Yoo, Bybee, and Bradbury--a prosecutor would have the burden of proving conspiracy to torture and to contort the law to the authors’ ultimate illegal goals. Yes, a prosecutor would have to prove that they were acting in bad faith. And, yes, this would require “smoking gun evidence” that may well be hard to come by. This is all true. And it is all irrelevant.
What this situation demands at this time is not yet prosecution but investigation. And anticipating a difficult case for the prosecution is no reason to forego an investigation. On the contrary, the facts that are already public are more than enough to justify--in fact, to require--a full-fledged investigation of the truth. The law mandates that where torture has been committed under American jurisdiction (which we now know, with certainty, has been the case), a criminal investigation and, where warranted, prosecution must be initiated. The investigation must be independent so that it is entirely removed from politics and freed from actual or perceived conflicts of interest that are inherent in the Justice Department’s investigating itself. That is why the law demands the appointment of a special counsel in such a case.
And let us not prejudge what the result will be. We can’t assume prosecution before we see all the evidence before us. If an independent investigation were to vindicate Bybee et al, then so be it. If the investigation leads to higher-ups in the Bush administration, as Mr. Rosen imagines it would, then let’s follow the path there. We simply have no choice in this case. We are obligated by American law and international treaty to investigate torture and, if warranted, to prosecute--a determination that cannot be made until after a proper investigation.
Jerrold Nadler represents the 8th District of New York in the U.S. House of Representatives.
By Jerrold Nadler