June 15, 2006
Next Time You Have A Thought... Let It Go
Army Lawyer has a great takedown of a very silly piece in Slate which contends that what the Army really needs is a special prosecutor. As he did a masterful job of identifying the inaccuracies in Umansky's piece, I shall confine my criticism to two rather stunning quotes. The first one is a near masterpiece of unintentional irony:
In case after case, low-level soldiers have been marched into a court martial as higher-ups get off scot-free—while those same higher-ups have usually faced nothing worse than a promotion.
… how can the system be improved?
What we need is an independent prosecutor's office, a place where a Patrick Fitzgerald-type can hang his hat and go after wrongdoing wherever it may be in the chain of command.
Wunderbar. How better to assist the Army in prosecuting criminal offenses? Create a new layer of bureaucracy and give it unlimited money, authority, and time. Presto! an unfolding train wreck. Mr. Umansky declines to consider one intriguing question: precisely what was actually produced in over two years of Fitzgerald's avid “special” (in the sense of the Special Olympics) prosecution?
Not a single indictment citing the charging statute.
The Big Fish in question (Karl Rove) walks away. Ditto Cheney and his staff. Wow. Fitz certainly nailed the major playahs, didn’t he?
One indictment of a minor administration official, not for violations of the IIPA mind you, but for obstructing the investigation; an offense committed by several witnesses (not least among them Judy Miller). PlameGate watchers no doubt remember how, after 85 days of funneling quarters into the Snickers machine at the Alexandria Detention Center, Miller suddenly “remembered” a prior meeting with Libby, who (quelle surprise!) had just added to his earlier general waiver of confidentiality a very specific waiver urging her to testify!
As a reward for her intransigence, Miller was then excused from further questioning about her sources, though she’d gone to jail on the pretext that her testimony was essential to the investigation. What a deal! Defy the prosecutor and get out of the very cooperation your confinement was designed to compel!
And please! Don't mention the disturbing fact that Fitzgerald never even bothered to establish that a crime had, in fact, been committed. Details are for the little people.
But it is unfair to rest an entire case on one unsatisfactory and time-wasting investigation. How have special prosecutors fared historically?
It began as way to check governmental abuses of power, and restore public confidence in the integrity of government. Over the next 20 years, however, it degenerated into a vehicle for partisan witch-hunts that consumed millions of tax dollars and prevented government from functioning efficiently, but rarely ferreted out the wrongdoing it was designed to punish.
So say critics of the Independent Counsel Act, enacted in 1978.
Well there's a ringing endorsement. And their success rate is hardly impressive. Experts have identified several shortcomings of the independent counsel system:
Scalia warned that the whole process of appointing an independent counsel, with its own jurisdiction and unlimited investigative scope, would alter the balance of power between the branches of government. It would be too easy to appoint political opponents to investigate the current administration, and "there would be no one accountable to the public to whom the blame could be assigned."
Few who have seen the fervor with which Democrats instigated investigations of the Reagan and Bush administrations, then witnessed the glee with which Republicans sought payback when Clinton was elected, would argue that Scalia was far from the truth.
Though the independent counsel law expired several years ago, the same problems have plagued modern-day special investigations:
First is what she calls the "witch hunt problem." With a single target to pursue, and an unlimited budget, timeframe, and jurisdiction with which to pursue him or her, the prosecutor could lose perspective.
As Scalia pointed out in his 1988 dissenting opinion, in traditional investigations, the prosecutor is assigned to investigate a specific crime and to find out who is involved.
However, the independent counsel was instructed to investigate a particular individual and find any crimes he or she may have committed, not just the most serious crimes or the crimes he or she was appointed to investigate. Furthermore, if an investigation was prolonged for several years, the investigator came under increasing pressure to bring charges for something, even if it is completely unrelated to the original investigation.
Sound familiar, or am I the only one experiencing déjà vu all over again?
Second, Sullivan asserts that partisanship was "an unavoidable temptation." Politics is all about cooperation and the threat of retribution, so politically motivated investigations tended to be repaid in kind. What more fitting quid pro quo for seven years of Iran/Contra investigations than at least an equal measure for Whitewater? Furthermore, when investigations were perceived to be unfair or politically motivated, those under investigation were more likely to seek protection by taking full advantage of any powers available, risking further allegations of abuse of power.
Third, the media's obsession with scandal made even the slightest indiscretion fodder for further investigation, even matters that would not be investigated or criminalized outside the political realm. Suddenly the threshhold for acceptable behavior was raised to the point at which almost no one would be deemed fit to hold office because of past sexual liaisons or financial dealings.
And this is an improvement over the current system? No one, watching the malicious glee with which the War on Terror has been turned into a political football seriously believes handing our enemies (not to mention two parties already at each other’s throats) yet another tool to bash each other and attack the President (via the military) is a good idea. Unless, of course, their ultimate goal is to paralyze both the government and the military. Which is, I suppose, an approach.
How long does Mr. Umansky think it will take, once our enemies find the most trivial accusation generates a huge, expensive witchhunt, for them to leverage this knowledge? What many people fail to understand is that leadership failures only rarely rise to the level of criminal offenses. But giving a virtual blank check to a special prosecutor neatly solves that particular problem, doesn't it? Why investigate the crime itself when you can go trolling through someone's record for other indictable offenses?
Only a fool would pass up the opportunity to neutralize high-ranking officers (who often have nothing to do with, let alone control over, the incident in question) by embroiling them in a messy and time-consuming investigation that ultimately produces little or nothing in the way of indictments. Considering the historical record of special investigations, this is hardly a far-fetched scenario.
Umansky closes with this thought:
The stench of a cover-up, coupled with the sense that higher-ups keep evading responsibility, does nothing for the United States' image. It reinforces a sense of hypocrisy and that can only hurt the United States in trying to win hearts and minds in Iraq and elsewhere.
When you combine the known problems with special investigations with their historical inability to produce results, the current military justice system (even with all its flaws) begins to look downright appealing. Umansky’s proposal appears to stem more from a desire to collect political shrunken heads than any real desire to punish the guilty. Despite their vaunted investigative skills, the media have always displayed a near-mythical inability to learn about or even attempt to understand how the military works. Their desire to collect high-ranking scalps whenever wrongdoing is alleged reveals a profound misunderstanding of a system in which highly-placed officers can never be everywhere at once, nor prevent those under their command from breaking the law.
While his desire to see the captain go down with the ship seems, on first impression, laudable, the sinking ship in question may well be the United States Armed Forces. Talk about winning the battle and losing the war.
But perhaps that was the real goal, all along?
Posted by Cassandra at June 15, 2006 08:52 AM
You'll probably be hearing more of this following the Haditha hearings. Murtha set the bar so "high" that the Left won't be -- can't be -- satisfied by any trial result other than one that finds "cold blooded murder." In any event except a potential conviction on that kind of charge, the Left will claim that this 'proves' that the military justice system is a failure -- since it didn't get the 'right result' when we 'knew' the Marines were guilty.
The only solution is to force political oversight of the military justice system. If the Marines don't knuckle under to Murtha's view of things, they need to be forced to do so.
Of course, the fact that there is now an official "right" result -- and that the failure to find it means that the military will come under pressure of this sort -- means that it will be hard for the Marines to get a fair trial. See my comment at your post above re: how Murtha's own statements are a form of "command influence."
Posted by: Grim at June 15, 2006 03:55 PM
Murtha set the bar so "high" that the Left won't be -- can't be -- satisfied by any trial result other than one that finds "cold blooded murder."
Thus making it doubly ironic that Puckett-breath is planning to allege Hagee exercised undue command influence, n'est pas?
Damn. I'd love to have had a transcript of that briefing. And why the hell did he brief Murtha, of all people?
I am reminded of that Indian folk tale that ends, "You knew I was a snake when you picked me up".
Posted by: Cassandra at June 15, 2006 05:38 PM
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Oleg: Tovarisch Caller, what is your problems?
Caller 1: Oleg, is needings army special prosecutor?
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(cue cheesy game show music and fade to black)
Posted by: a former european at June 16, 2006 04:08 AM
afe, I've read this three times now and it is still funny.
Posted by: Cassandra at June 17, 2006 02:09 PM
Well, its nice to know Oleg has at least one fan!
Posted by: a former european at June 20, 2006 12:25 AM
Posted by: Cassandra at June 21, 2006 11:10 AM