excerpt: A host of liberals yearn for a Fitzgerald-like prosecutor to hit the torture trail--to investigate whether any Bush administration officials violated anti-torture laws, or conspired to do so. MoveOn has asked its members to urge Holder to set up a special prosecutor, and it has organized a petition drive. In a letter to its members, the group says:
So far there's been no accountability for the architects of Bush's torture program -- the top officials who justified keeping detainees awake for 11 days straight, waterboarding them repeatedly, and forcing prisoners into coffin-like boxes with insects. We need real consequences for those responsible -- it's the only way to keep this from happening again.
Democrats.com has a similar petition for Holder. The Center for Constitutional Rights has called for a special prosecutor. So have the American Civil Liberties Union and Firedoglake.com. Constitutional law professor and talking head Jonathan Turley said that appointing a special prosecutor was "long overdue." Representative Jerry Nadler (D-NY), who chairs the House subcommittee on the constitution, has demanded that Holder hire a special prosecutor. And Representative John Conyers, who chairs the House judiciary committee, has requested a special prosecutor who would investigate not merely interrogation practices but the Bush administration's use of extraordinary rendition and warrantless wiretaps.
These liberals all want to see alleged Bush administration wrongdoing exposed. But there's one problem with a special prosecutor: it's not his job to expose wrongdoing. A special prosecutor does dig up facts--but only in order to prosecute a possible crime. His mission is not to shine light on misdeeds, unless it is part of a prosecution. In many cases, a prosecutor's investigation does not produce any prosecutions. Sometimes, it leads only to a limited prosecution.
That's what happened with Patrick Fitzgerald. He could not share with the public all that he had discovered about the involvement of Bush, Cheney, Karl Rove, and other officials in the CIA leak case. Under the rules governing federal criminal investigations, he was permitted to disclose only information and evidence that was directly related and needed for the indictment and prosecution of Libby. Everything else he had unearthed via subpoenas and grand jury interviews had to remain secret. Repeatedly, Fitzgerald said that his hands were tied on this point. A special prosecutor, it turns out, is a rather imperfect vehicle for revealing the full truth.
Once upon a time, Washington did have independent counsels. This was a special kind of special prosecutor. Under the law creating that position, these investigator/prosecutors were compelled to release a final report explaining their findings and their decisions to prosecute or not prosecute. These reports--such as the one produced by Iran/contra independent counsel Lawrence Walsh--tended to be lengthy and exhaustive. They extensively explained the scandals that had been investigated. The actions of people not prosecuted were fully explored and explained. Several independent counsel reports were masterful accounts of government improbity.
That was then. The independent counsel statute expired years ago, with neither Republicans nor Democrats complaining. That was because Republicans had hated Walsh. And Democrats had soured on independent counsels, thanks to a fellow named Kenneth Starr.
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