Only If You Ignore The Law

The LA Times prints the opinion of a few legal minds and decides that it would be impossible to prosecute lawyers for their legal opinions authorizing torture.

First, the lawyers would have to be shown to have deliberately misinterpreted the law against torture.

"It would be a real stretch. As long as they thought they were honestly interpreting the [anti-torture] law, they are not criminal conspirators," said Stephen A. Saltzburg, a law professor at George Washington University and a former prosecutor. "They may be bad lawyers who gave extremely bad advice," he said, but that is not a crime [...]

In this instance, a prosecutor would have to show that Yoo or Bybee intentionally misstated the anti-torture law. "Given the somewhat subjective basis for almost all legal analysis, I don't know how you would ever prove that," said Stanley Brand, a Washington lawyer and onetime counsel to former House Speaker Thomas P. "Tip" O'Neill Jr.

"You would have to show they knowingly gave bogus advice," said Peter Zeidenberg, a former prosecutor in the Justice Department's public integrity unit. "Theoretically, you could do it, but only if you had evidence they knew that's what they were really doing."

Legal experts said they would see the matter differently if the focus was on war crimes and international law.

Except, you know, the focus IS on war crimes and international law, which these torture memo writers expressly disobeyed. Even in the Bradbury memo of 2005, he admits that this country condemns the use of these techniques when employed by other countries.

The United States condemns coercive interrogation techniques and other practices employed by other countries. Certain of the techniques the United States has condemned appear to bear some resemblance to CIA interrogation techniques [...]

The State Department’s inclusion of nudity, water dousing, sleep deprivation, and food deprivation among the conduct it condemns is significant and provides some indication of an executive foreign relations tradition condemning the use of these techniques.

The reason we condemn those acts of torture (and thank you John Boehner for finally calling it that) is because they are illegal, and when practiced by our own leaders we have an obligation to hold those who authorized and directed torture accountable.

many people, such as Scott Horton, have argued that prosecutions of Bush DOJ lawyers who authorized torture find precedent in the Nuremberg prosecutions (as part of the Justice Case) of German lawyers who also declared various war crimes to be legal. International law professor Kevin Jon Heller -- who questioned the applicability of that precedent -- today writes about a separate set of prosecutions by the Nuremberg Military Tribunal, as part of The Ministries Case, in which German officials were prosecuted for doing nothing other than stating, when asked, that they had no objection to the deportation of 5,000 Jews from France. Those officials, who were convicted at Nuremberg, did not order the deportation or carry it out; rather, they merely failed, when asked, to object to the policy on the ground that it violated international law. Professor Heller argues that this case provides an almost perfect precedent for holding OLC torture-authorizing officials accountable (emphasis in original):

The parallels between the Foreign Office’s role in the SS deportations and the OLC’s role in the CIA’s torture regime are uncanny. Nothing is lost if we simply substitute "Yoo, Bybee, and Bradbury" for "Woermann and von Weizsaecker," "OLC" for "Foreign Office," and "torture" for "deportations."

Indeed, in one critical respect, the case against the authors of the OLC memos is even stronger than the case against von Weizsaecker and Woermann. The latter’s criminal participation in the deportations consisted solely of omissions -- failing to point out that the deportations violated international law. The former’s criminal participation in the CIA’s torture regime, by contrast, consists of both acts and omissions, because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime.

Now, you can argue, like McCain, Rosencrantz and Guildenstern, that poor legal advice is not a crime, but you would be at odds with international law and precedent. At the very, very least, kep architects of the torture regime shouldn't still have a job in the US Government, or as a federal judge with a lifetime appointment. But ruling out prosecutions as impractical just rules out the law itself.

I'll throw in a last plug for my petition to have the California Democratic Party pass a resolution to impeach Jay Bybee from the 9th Circuit Court of Appeals. I have 4,420 signatures on the petition already, and I will present them at the Resolutions Committee tomorrow.