On Fox News Sunday today, Senator Carl Levin, never a moderate Democrat, called again for a "independent" investigation into something about the interrogation memos. I say "something about," because it's far from clear just what needs to be investigated there, but that's not my objective. My objective is to tear apart Levin's words and illuminate their hidden implications.
He said he believes, "There ought to be accountability, but how that is done, should be done by an independent person, not by elected politicians such as me or anybody else." He was speaking at the time about Abu Ghraib (still asserting tht what went on there was policy), but he later applied it to any individual or event, including the memos and CIA interrogations.
Unfortunately, Levin seems to believe that this independent person is found in the the Justice Departement, or that he can be found elsewhere to make "independent" recommendations to the DOJ. I didn't notice if he used the term "independent counsel," but he could have. But where does this leave us?
It leaves us with the prospect of an unaccountable individual, picked by somebody (Eric Holder, perhaps?), being selected to investigate something, anything, and then given the power to recommend prosecution or not. But unless this is more than a recommendation, the Attorney General or President still has to make the final decision.
Why bother with the intermediary? Let the people who have been charged with the authority of being "the deciders" make all the decisions. They can then be held responsible by the public if they overstep their authority or the bounds of decency. As pointed out by Senator Kit Bond on the same show, "We [the Congress] have oversight to object at the time if we think they are wrong." In other words, the responsibility to prevent Executive abuses in national security matters lies with the Congress to do so before the fact. This is a political role, and it's a proper one for the Congress. Congress's role is not to just sit back and comment on the passing scene. (Leave that role to us.)
While the idea of an independent prosecutor is enticing, what does it imply about our system of government? It implies that our elected officials can't be trusted to do the right thing, rather than the politically expedient thing. Yet it also implies that these same untrustworthy politicians can be trusted to select an independent investigator to do their work for them, and do it right. In fact, this sometimes happens. Other times, we get a Patrick Fitzgerald who has his own agenda which happens to be the opposite of what might have been the agenda of his selector. As we found out in the Whitewater investigations, these prosecutors can find plenty to prosecute. We also found out there that if the President doesn't want the investigation to follow certain trails, he can have his Attorney General deny permission to continue down those roads, putting the lie to the idea of true "independence."
So the idea of an "independent" investigator is actually just a false ideal, something out of comic books, like Superman or Batman or ___________ (insert name of your favorite fictional hero). In real life, we're better served if political actions (and an investigation into CIA interrogations is nothing if it isn't political) are taken by political actors, people who can be held accountable by the public for those actions.
The public can determine if a prosecution is politically motivated, and even if an investigation is politically motivated. It's really pretty easy. Watch both sides. If they are divided along party lines, the issue probably is partisan politics and it doesn't belong in civil or criminal court. (How this might affect possible prosecution of Congressman William Jefferson, I'm not sure, but he simply isn't that important any more). If the majority side is bi-partisan, there may be more merit to the question.
Of course, this discussion is muddied by the fact that there is very little in government that isn't partisan politics any more. Years of liberal Senatorial control over judicial placements has insured that even some courts are partisan in outlook and behavior. And amazingly enough, federal courts are another area where there is no public oversight of their behavior. Still, the more accountability that falls on the shoulders of elected officials, the better. And accountability is exactly what people like Carl Levin are trying to avoid.
It is the responsibility of the President to see that the laws of the US are enforced. (Good for a chuckle, right, but still true). The Attorney General and the DOJ are his right arm in this regard. If the Congress believes the President is not doing his job, it's their responsibility to take the action they think is necessary and appropriate. The have that authority. To try to foist it off on an extra-governmental player, someone who is not answerable to the public, is simply irresponsible on their part. To try to convince us that it's somehow better to make the process "independent" is in fact an attempt to whitewash the institutionalization of partisan witch hunts.