Prosecuting Torture

Is Time Really Running Out?

Elizabeth de la Vega says no! Don't Panic!

It turns out that, on all of the various charges, the statute of limitations is actually between eight years and never.

It pays to at least scan her entire argument here, but here are her salient points with my emphasis added:

When the highest officials of our nation flung open the gates of law and morality and let the wild dogs of torture run, they set in motion a constellation of potentially-indictable federal crimes .... the Attorney General must not rule out prosecutions for these violations .....

So Many Crimes, but How Much Time?

Won't it be too late if we wait much longer? Absolutely not. There's a lot of misinformation out there on this topic, mainly as a result of gross oversimplification of the law. However, notwithstanding anything you may have heard - about charges disappearing in 2010 and all hope being lost after 2011 - time is not running out to prosecute Bush administration officials either for torture itself or for the many crimes they committed to keep their program alive throughout their tenure .....

Obviously, if the rampage of prisoner abuse that the Bush White House triggered in the fall of 2001 - along with the ongoing concealment of the program - were a "case," it would not involve a simple set of facts. On the contrary, it encompasses a huge universe of evidence - eight years' worth - and scores of possible defendants. There is a raft of possible federal crimes and each would have to be analyzed separately, first to make a charging decision and then to determine the statutory indictment deadline.

....I do not know if these former White House officials are finally listening to attorneys who give them legal advice they don't want to hear. But if they are, they well know by now that their defense can never rest.

The Bottom Line

I'm trying to emphasize that people should not throw in the towel prematurely. Keep up the pressure, absolutely, but brace yourselves for the long haul.

Most important, in the near-term, think twice about fueling the inaccurate impression that it's game-over in eighteen months in order to create a sense of urgency, when it is the gravity of these crimes that should be paramount. And gravity and urgency are not the same thing. Many powerful people from across the political spectrum would be utterly delighted if the millions of Americans now pushing for accountability gave up in despair in a year or two because they mistakenly believed that prosecutions were no longer possible. But it is self-defeating in the extreme for those who want Bush, Cheney et. al. held responsible for their actions to foster this misconception. A widespread false belief that prosecutions are a limited-time offer provides a ready excuse for ultimate inaction to any and all who wish to "move on" as if eight years of torture were merely an unpleasant incident on the sidewalk. At the same time, people who don't know options still remain will be helpless to argue otherwise. In the world of criminal prosecutions, this is not a short story; it's a sprawling Icelandic saga. And - as any attorney who has prosecuted complex federal cases could tell you - it will be many years, if ever, before legal time limits will bar the hearing of this horrific epic in a US criminal court.

Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and chief of the San Jose Branch of the US attorney's office for the Northern District of California.
Her pieces have appeared in a large variety of print and online publications. Most notedly, she is the author of the authoriative United States v. George W. Bush et al.