Wise counsel.

The law, lawyers, and the court.
May 28 2004 4:50 PM

Wise Counsel

Appoint a special counsel to investigate Geneva violations.

In the past week, details have emerged of not only more prisoner abuse in Iraq, but also a concerted effort by the president's chief lawyer to try to insulate such abuse from domestic criminal investigation. A 2002 memorandum from White House Counsel Alberto Gonzales tells the president to refuse to apply the protection of the Geneva Conventions to detainees because Americans could be charged in domestic courts with war crimes. Now that photos and Army reports suggest that just such crimes have been committed, a criminal investigation is necessary. And because the administration's own memoranda reveal that it tried to adopt policies to frustrate precisely such prosecutions, the attorney general must now appoint an outside prosecutor to investigate whether war crimes actually occurred.

This is the paradigmatic case for a special counsel.

When I drafted the Justice Department's regulations for the appointment of a Special Counsel in the last administration, there were two bipartisan aims: 1) to replace the extra-constitutional "independent counsels," who had structural incentives to elevate their own interests over that of traditional law enforcement, with entities that would retain a sense of discretion and accountability; and 2) to make it easier for the attorney general to call on an outsider to investigate a specific matter. In particular, there was a need to reassure the public that, despite the demise of the Independent Counsel Act (which gave Kenneth Starr and Lawrence Walsh their powers), the attorney general could still step outside the career bureaucracy when there was evidence that high-level officials might interfere with criminal investigations.

There is no doubt that this evidence exists today. The memorandum from Gonzalez to President Bush shows the administration has adopted specific policies to stymie prosecutions brought under two acts of Congress—the 1996 and 1997 War Crimes Acts. These laws make it an offense when a United States national (including not just military personnel, but contractors as well) commits grave breaches of the Geneva Conventions. The Geneva Conventions, in turn, govern the treatment of prisoners of war, and it goes without saying that their observance has been integrally bound up with the pride of the United States' armed forces for over half a century. But, as the photos from Abu Ghraib suggest, those conventions appear to have been violated.

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Yet the once-secret memo to the president from his top lawyer suggests that, by embracing a legal assertion proposed by an assistant to Attorney General Ashcroft, John Yoo, he might head off an independent investigation into criminal wrongdoing about war crimes.  The Gonzales memorandum urges the president to refuse the Geneva Conventions' protections to detainees to "substantially reduc[e] the threat of domestic criminal prosecution under the War Crimes Act," because "it is difficult to predict the motives of prosecutors and independent counsels who may" investigate these violations. If you were asked to imagine a smoking-gun document about the need for a special counsel, it would read like this; the kind of evidence about which conspiracy theorists only dream.

People on either side of this question have rushed to judgment. Some have said that there is absolutely no reason for a criminal investigation. Others have said that officers within the administration are clearly guilty of criminal acts—neglecting the fact that there is, at present, no evidence of high-level criminal wrongdoing or evidence of criminal intent. (The shameful graduation protest at Berkeley's Law School on Sunday calling on Yoo to resign his professorship reminds us that good judgment is in short supply more generally.)

There are strong arguments voiced by both the administration and its critics—a fact that militates for, not against, a special counsel. Perhaps the impression left by the photos is wrong, or perhaps the violations are not severe. But these are crucial questions that must be answered not by someone the president has hand-picked to serve in his administration, but by someone of sufficient outside independence to reassure the public and the world. And if the president ultimately decides not to prosecute war crimes violations (as is his prerogative under Article II of the Constitution), he should say so openly—instead of burying such decisions in hidden memoranda. The advantage of the special counsel regulations over the old Independent Counsel Act is that they enshrine this constitutional concept of presidential prosecutorial power; the president and attorney general can always refuse to follow a decision by a special counsel as long as they notify Congress that they are doing so. In this way, accountability, not only of the prosecutor, but also the president and attorney general, is preserved.

An outside prosecutor is not needed in every case where there is some claim, somewhere, that the administration might interfere with a prosecution. That is why I argued last October against the appointment of a special counsel to investigate the leaking of Valerie Plame's identity. But here, clear evidence exists that the White House has been engaged in a deliberate and secret attempt to insulate Americans from criminal liability despite laws enacted by the United States Congress designed to confer precisely that liability. A signal must be sent to both the investigating entity and the public that the prosecution will have the independence necessary to investigate this most sensitive of matters.

A special counsel need not take years to complete his or her task. Some counsels have completed their task in mere days, and if the attorney general were to circumscribe the jurisdiction of the special counsel, there is no reason to think that it would be an open-ended process that would drag on indefinitely. Because no evidence of crimes committed by high-level administration officials exists, individuals like Mr. Gonzales are not appropriately within the jurisdiction of a special counsel at this time. (It cannot be seriously said that a legal opinion memo "aided and abetted" the abuse in Iraq because there is no evidence of specific criminal intent on the part of Mr. Gonzales.) The case for the special counsel is not built on claims that high-level administration officials committed crimes. It is grounded in the perception, if not reality, that the administration might interfere with an investigation into criminal wrongdoing committed by other government employees and civilian contractors.

It is worth pointing out that the recently released memos also cast doubt on many other areas of administration strategy. For example, as Secretary of State Colin Powell warned, the Gonzales position eviscerates the utility of military tribunals. (This is an issue near and dear to me, since I am representing JAG officers who are challenging the constitutionality and legality of these tribunals.) Military tribunals can only prosecute violations of the laws of war, and the laws of war have been defined by Congress in the 1996 and 1997 acts. For the administration to admit that these laws don't apply to Afghanistan and Guantanamo means that they now have no substantive law on which to try these people.

More generally, the position taken by Mr. Gonzales in the memorandum reveals the hypocrisy behind the administration's decision to resort to military tribunals. The memo argues that if prisoners are given Geneva Conventions protections, then Americans one day might be prosecuted in American civilian courts for violations of the laws of war. Mr. Gonzales goes on to say that these offenses are defined vaguely and  susceptible to abuse by a prosecutor. Think about it: The White House counsel is saying that these offenses are susceptible to  abuse, and saying so in a context in which the full panoply of American civil law would apply to guard against exactly that kind of prosecutorial abuse, including protections given to defendants in the Bill of Rights. But when it comes to foreigners, the administration is content to set up a half-hearted system of military justice and not fret about the vagueness of those very same offenses. As I've said before, it's one thing to worry about vaguely defined offenses in a civilian trial, quite another in a faux-military proceeding, at which defendants are not even given the most basic of protections. The administration plays it both ways constantly—it fears the laws of war when they might restrict how prisoners can be treated—but then embraces them expansively when it wants to set up this system of military justice "lite."

The decision to appoint of a special counsel is always delicate. But when strong evidence casts doubt on the appearance of an impartial investigation, as it does today, it's the right thing to do.

Neal Katyal teaches law at Georgetown University. He argued the Hamdan case before the lower courts and the U.S. Supreme Court.

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