An alternative to prosecution

I've been thinking and talking about alternatives to prosecuting senior members of the Bush administration for torture.

I thinkt that prosecuting Cheney, Addington, Yoo, etc. in a realstic world would risk becoming a circus, and that it would drag in the new administration and poison the atmosphere of bipartisanship that would allow anything to get done in Washington. In a time of peace and prosperity we managed to get through the Clinton impeachment, but you'll note that not much substantive governing got done during that time. I also think that prosecuting an outgoing administration sets a problematic precedent, as almost every administration does things that are technically illegal-- Lincoln suspending habeas corpus, FDR with Japanese internment, Kennedy and LBJ with their CIA plots against Castro, Reagan with Iran Contra. The fear that actions taken during an adminstration could result in imprisonment could lead to a.) much more dithering by a president, and more perniciously, b.) presidents thinking long and hard before giving up power.

In the Roman Republic, persons elected to the Consulship (or its follow-up position, pro-consul governing a province) had largely unchecked power for their year term, as their body was inviolate (they couldn't be attacked or seized). The primary leash on a Consul, other than threat to reputation, was the threat of prosecution/suit when they stepped down. The Romans didn't have public prosecutors as we do- prosecutions brought on the behalf of those wronged much in the way that civil suits are undertaken nowadays. The idea being that if, while you were consul you unjustly seized somebody's villa, or exiled someone, you could be brought to justice by that party.

In the late Republic, this sort of system was (and I'm broadly generalizing) often ignored in favor of proscription lists, where the incoming winners would create a list of the various people supporting the last administration, and those on the list could be killed and their property taken. This lead to Caesar demanding, after his consulship, an unprecedented five-year proconsulship in Gaul with his own army- to avoid proscription or other serious penalty for his actions as consul. And we all know how that "Caesar gets his own army in Gaul" thing turned out. Now think about an unpardoned Nixon, "about-to-face-prosecution-Dick-Cheney," or similar characters down the road, and ask yourself how many times we want to stand at the Rubicon rolling the dice and hoping that they're all better people than Caesar.

The upshot is that I think that a solution closer to the Republic's "private prosecution" than to the Caesar option is called for in this situation. Fortunately, in the US, we already have something along these lines. The breadth of this administration's torture program has left us with a number of sympathetic plaintiffs, and they have available to them lawsuits called "Bivens Actions," named after Bivens v. Six Unknown Named Agents. In a Bivens Action,

federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which constitutional practices occur or gross negligence in managing subordinates who cause violations. (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93)

The plaintiffs could bring suit for money damages directly against Cheney, Yoo, etc, and would certainly be helped along by sophisticated attorneys from the ACLU and other such entities. The process could be greatly aided if the Obama administration directed the Solicitor General to file an Amicus brief countering the argument sure to be made by the Bush administration officials that various documents couldn't be turned over because of national security concerns. Obama could essentially say that, since we're closing Gitmo and no longer practicing extraordinary rendition, the documents relating to those practices need no longer be secret. I think there might still be some issues with executive privilege, but the fact that the administration is no longer in power should do much to quell those.

Lawyers (and Classics Majors!)... what am I missing here? Does this work?

UPDATE: A Classics expert friend tells me that Caesar's actions in crossing the Rubicon were largely motivated by the fear of what Pompey would do to him if he returned to Rome (as the Senate demanded) as a private citizen, as opposed to as an inviolate proconsul with an army. The point still stands that it's very problematic to set up a system where Presidents potentially face routine prosecution by their successors... that sets up a serious disincentive to step down. And as my friend writes, "it's a very thin thread we hang on when we talk about the rule of law."