"That word 'example'...

...I do not think it means what you think it means."

Scott Horton has been a clear, principled, and authoritative voice against torture and other high crimes of the current administration. He's made the case unflinchingly for holding accountable those who institutionalized torture, abused the justice system for political purposes, and ordered massive domestic spying. He's earned great respect for his views.

But he's not always right. One mistake, which he's already acknowledged, was to support Michael Mukasey's confirmation as Attorney General and to give him the benefit of the doubt as he undertook that job. Horton has documented his many and deep disappointments since, concluding recently that Mukasey has shown nearly the same degree of commitment as his predecessor Gonzales to covering up the administration's abuses.

Horton is making another mistake now in his approach to accountability for torture. In this case, there's plenty of time for reconsideration before it's too late. Commenting on the recent AP story, 'Obama advisers: no charges likely vs. interrogators', he correctly warns against accepting the statements of unnamed sources as anything other than efforts to move forward those sources' agendas. Horton rightly dismisses any statements, on or off the record, about decisions in advance on the part of a not-yet-in-office Obama administration Justice Department to prosecute or not:

the bottom line is that there should be no call about prosecutions until there has been an investigation. ... In the end any prosecution would require a special prosecutor, but who should handle the threshold inquiry into whether enough [evidence] exists to appoint one?

But then he goes very wrong:

There is one clear answer, which is for President Obama to follow the example of President Ford in his dealings with allegations of intelligence community misconduct with high-level complicity that rocked the mid-seventies. He should appoint a commission to lay bare the facts, putting what the public needs to know on the record. Only then should the call about a special prosecutor be made by the attorney general. He should have the commission’s advice and findings to draw on in the process...

This is either a little joke on Horton's part, or a bizarre rewriting of the history of the Rockefeller Commission of 1975, which was widely viewed even at the time as an attempt by the Ford administration to fend off more energetic investigations by Congress and to limit disclosures of CIA wrongdoing. The attempt, moreover, was a failure; especially by comparison with the results unearthed by the Church and Pike committees during and after the commission's brief existence, its efforts amount to a classic whitewash.

But even if it had conducted an independent, wide-ranging, and thorough examination of the CIA's activities, the Rockefeller Commission has no relevance as an example for the Obama administration because it was never intended to develop evidence for weighing possible prosecution. Its explicit, public mandate was to determine whether any domestic CIA activities exceeded the Agency's statutory mandate and to make appropriate recommendations. Specifically, it was to address whether existing safeguards were adequate to prevent violations.

There was no hint that revised safeguards or corrective action might include prosecution of anyone -- the idea was very much that the administration itself would take care of any excesses, with possibly some restructuring of Congressional oversight. The closest the commission came to the subject of prosecution was in its recommendation that the administration draw up written guidelines for handling criminal allegations against Agency personnel, with the idea that these would be handled by the Justice Departmnet in consultation with the CIA (i.e., virtually giving the Agency a veto on prosecutions).

The internal objectives of the Ford administration in convening the commission were documented by the aide who encouraged Ford to form it, one Dick Cheney:

In a draft memo to the president written on 27 December, Deputy Chief of Staff Richard Cheney explained that the president had several reasons to establish such a commission: to avoid being put on the defensive, to minimize "damage" to the CIA, to head off "Congressional efforts to further encroach on the executive branch," to demonstrate presidential leadership, and to reestablish Americans' faith in their government. [From Challenging the Secret Government: The Post-Watergate Investigations of the CIA and FBI by historian Kathryn Olmsted]

There may be a real case for a commission as the best procedure by which to gather evidence that would then provide a basis for the Attorney General to appoint a prosecutor or not. Citing the Rockefeller Commission as an example does not make that case; it undermines it. Update: 21 November, 5:10 pm - Horton makes the case for a commission more cleanly in an interview with Glenn Greenwald. End update.

Furthermore, any assessment of the best course of action open to the Obama administration has to take into account the dramatically contrasting political situations of Presidents Obama and Ford in their first year in office. A popular incoming president elected by a wide margin with a mandate for change and strong, increased majorities in both Houses of Congress who has explicitly promised to end the policy of torture and close the prison at Guantanamo, Obama is clearly counting on being given time to deal with the mess created by the previous administration's policies before facing the question of how to hold its officials accountable.

He is not facing a hostile Congress that has just exercised its power against the executive branch, but a cooperative legislature that even under an unpopular and discredited Republican administration has shown very little determination to do its own investigations into the executive branch's crimes. The focus of Obama, Congress, and the public is almost entirely elsewhere: on the down-spiraling economy, health care, the wars in Iraq and Afghanistan/Pakistan, and the narrowing window for action to avert climate and energy crises.

Much of the pressure for legal accountability is likely to come from abroad, though there are enough of us seeking it here to warm my heart.

Update 2: 24 November, 9:30 pm - TPM Cafe book club discussion of proposals for accountability, with Scott Horton, Charles Homans, Daniel Larison, Mickey Edwards, and others; start here.

[Image from Hecate's Daughter, linked above at 'warm my heart']
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