Torture, Impunity, and the Need for Independent Prosecutorial Oversight of the Executive Branch

Allegations of Executive Branch misconduct present an inherent conflict of interest because prosecutorial discretion is invested 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 checks on executive power provided by the Legislative Branch, the Judiciary, and political pressure will overcome any potential conflicts of interest. This sanguine view of adequate Executive Branch oversight was put to the test when high-level members of the George W. Bush Administration authorized acts of torture. After widespread public disapproval, Congress and the courts responded with efforts to rein in the Administration’s actions. However, the Department of Justice under the Bush Administration not only refused to investigate and prosecute allegations of sanctioning torture, but its attorneys also 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. Ultimately, the President who sanctioned torture left office, and the voters elected a President who expressed sharply different views on torture. However, the subsequent Administration of President Barack Obama, although affiliated with a different party and on record as opposed to acts of torture sponsored by the previous Administration, has also declined to pursue prosecution of high-level members of the Bush Administration. This most recent development shows that the conflict of interest presented by presidential control over Executive Branch prosecution transcends predictable concerns of self-preservation. The conflict of interest also highlights the natural desire of a sitting President to avoid prosecutions of previous executive officials 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, the current structure designed to provide checks and balances comes up empty and thus must be reformed. The most direct and effective reform would be the direct election of the U.S. Attorney General. Even less precise remedies, such as a revived and improved independent counsel or Congress enacting provisions to break up the current monopoly over Executive Branch prosecution, would be significant improvements over the current system, which mocks the principle of equal justice for all.