Torture, Impunity, and the Need for Independent Prosecutorial Oversight

Fran Quigley, Indiana University --Indianapolis

Abstract

When executive branch misconduct is alleged, an inherent conflict of interest is presented by investing prosecutorial discretion in a U.S. Attorney General appointed by, and serving at the pleasure of, the President.

Various commentators, including Justice Antonin Scalia, Professor Stephen Carter, and the many critics of the former independent counsel statute, have posited that this conflict will be overcome by checks on executive power provided by the legislative branch, the judiciary, and political pressure.

That sanguine view of adequate executive branch oversight was put to the test when acts of torture were authorized by high-level members of the George W. Bush administration. Congress and the courts responded with efforts to rein in the administration’s actions, and the public expressed its displeasure with the torture activities. Ultimately, the president who sanctioned torture was replaced by a president who expressed sharply different views on torture.

Yet all these efforts and developments failed to stop illegal torture during the Bush administration, and have not led to prosecution of the executive branch leaders complicit in torture. The Department of Justice under the George W. Bush administration not only refused to investigate and prosecute allegations of sanctioning illegal torture, its attorneys led the efforts to overcome Congressional, judicial and popular resistance to the executive branch conduct—and did so while explicitly acknowledging that the executive branch could expect little or no judicial oversight for its actions.

Just as significantly, but perhaps less predictably, the subsequent Barack Obama administration, affiliated with a different party and on record opposing the acts of torture sponsored by the previous administration, also has declined to pursue prosecution of high-level members of the Bush administration.

This most recent development shows that the conflict presented by presidential control over executive branch prosecution transcends predictable concerns of self-preservation. The conflict also encompasses the natural desire of a sitting president to avoid prosecutions of previous executive branch members when such prosecutions would consume political capital needed for the president’s broader legislative and foreign policy agendas.

When it comes to controlling executive branch criminal conduct, a U.S. governing structure designed to provide checks and balances comes up empty, and thus must be reformed.