Feingold Wrongly Urges Obama to Delay Prosecution

Senator Russ Feingold just wrote a letter to President Obama urging him to delay prosecution:

I urge your administration to wait to consider the findings of the Senate Select Committee on Intelligence's review of the program, and the Department of Justice's investigation, before making any decisions related to prosecutions of any persons involved in these interrogations.

Feingold's letter implies DoJ would not prosecute anyone based on the evidence currently available. Feingold implies the evidence for prosecution would be significantly stronger after SSIC completes its work.

As a member of SSIC, Feingold certainly knows secrets the rest of us don't know, and presumably intends to make them part of the SSIC report.

But delaying the start of prosecution until the end of 2009 would be grossly counterproductive, as David Swanson discusses.

One key reason is the imminent expiration of the statutes of limitations on key crimes. Also, there is a real danger that the Senate will mistakenly grant immunity to witnesses who really should be prosecuted. Moreover, the victims of torture - including the honest CIA agents and soldiers who objected and suffered the career and psychological consequences - deserve closure sooner rather than later. Finally, these highly-charged issues should be resolved long before the start of the 2010 campaign.

There is already more than enough information in the public domain for a Special Prosecutor to begin a criminal investigation, thanks to the work of the Senate Armed Services Committee, the declassification of several DoJ torture memos, lawsuits by torture victims and excellent investigative reporting. Even Dick Cheney is now pushing to declassify important evidence.

Moreover, two key investigations are nearly complete: Special Prosecutor John Durham's investigation of the destruction of CIA torture tapes, and the Office of Professional Responsibility's investigation of the authors of the torture memos.

The most efficient way to proceed would be to appoint John Durham as Special Prosecutor for torture, expanding on the non-criminal investigation he has largely completed.

All criminal investigations are dynamic - they elicit new information privately and they incorporate new information that appears in the public domain. It would be perfectly fine for SSIC to begin its investigation and subpoena documents and witnesses to add to the evidence that is already public. But there's no reason to delay the appointment of a Special Prosecutor until SSIC completes its work many months from now.

Update 1: Feingold is exactly right on Judge Bybee:

The idea that one of the architects of this perversion of the law is now sitting on the federal bench is very troubling. The memos offer some of the most explicit evidence yet that Mr. Bybee and others authorized torture and they suggest that grounds for impeachment can be made. Clearly, the Justice Department has the responsibility to investigate this matter further. As a Senator, I would be a juror in any impeachment trial so I don't want to reach a conclusion until all the evidence is before me.