Saturday, April 18, 2009

Blogging the Bush torture memos

You could define blogging as "trying to prove you're clever by writing about something nifty that you had no part in." I'm not sure it's a perfect definition (and it's certainly not comprehensive!) but today, I'm going to try to commit blogging by that definition.

As you probably know, President Obama ordered the release of legal memos that were written to try to provide a veneer of legality to the CIA's torture of prisoners. And there's a debate going on in the blogosphere. Obama pledged not to prosecute the CIA agents who followed those memos. Should he keep to that pledge, in the face of clear evidence that torture was performed? After all, as many, many, many people have pointed out, the Nuremberg trials did not accept "we were following orders!" as a defense.

But, these memos did not say "it is lawful to perform torture". This is a key issue: the memos said that certain actions did not rise to the level of torture.

If the memos had said "these actions, despite being torture, are lawful" that should have been a bright line in the sand. I'd say "prosecute away". But they didn't say that. They said "these actions are not torture."

Now, there's a huge problem here. This is all legal theorizing, ignoring the circumstances. Theorizing that a certain set of actions wouldn't be torture is simply absurd, especially when the basis of many of those decisions came from a totally different situation (people being willing to undergo SERE training, when they knew that they were not in real danger, and knew that it would all be over in a set time frame - a situation that doesn't apply to captives).

But the theories were given to the CIA as legal opinions. And they avoided the bright line in the sand... they said that these things would not be torture, and therefore, not illegal.

So, if we prosecuted the CIA personnel who performed in accordance with these opinions, we are betraying their confidence in the assurances they'd already been given. It would be, at best, extremely dangerous.

I also agree with Anonymous Liberal that it would probably be pointless. Juries would probably refuse to convict.

That's not the clever bit. Here's the clever bit.

I think that we should consider prosecuting any way.


Because I think if a lawyer gives such pathetically horrible advice that it gets his clients prosecuted, it should be enough to do some real damage to their reputation. It might even push some folks to consider malpractice actions against them. But I think if that advice doesn't lead to so much as an investigation, people will regard it as moot.

Now, someone's probably going to point out some ugly truth or another, like "there's no penalty for being a really stupid lawyer", and it'll ruin my cleverness. And, hell, someone might point out that it still is a betrayal of the agents who asked for legal opinions, and received them, and followed their advice.

And, of course, it would be. And it probably still would be pointless. If those memos didn't at least hang the jury, I'd be incredibly surprised.

So, yes, agreed. It's not really all that clever after all. But it does point to the competing villains of this story.

First, that there were lawyers who would write such evil things and claim they were legal, and second, that there was an idea that lawyers could pre-judge what was, or wasn't, torture.

Those people, and those ideas, are what should be in our metaphorical gunsights now.

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