The question being mulled over right now by the U.S.A.G. is not whether waterboarding is torture, but whether it was so obviously illegal that those attorneys who wrote memoranda opining that it was not illegal should be prosecuted for a crime.
1. I don't care how off base I think another lawyer may be, I disagree with prosecuting a colleague who happens to arrive at a different conclusion than someone else on a question of law.
2. "The law" is not usually amenable to black-and-white answers.
3. Because the law is not usually fixed, attorneys who render opinions on the law will put qualifiers in their memos like "probably" or "highly likely," kind of like the IPCC put throughout its 2007 climate change report (yup, I've been reading). My guess is that qualifications on the opinions will be found in the memos.
4. The decision to waterboard was essentially a political one, that came with political consequences. Morality is involved with every decision, and there are moral consequences as well.
5. The only circumstance where I could go along with a prosecution for a legal opinion would be where there was a specific law on the books (The "Anti-Waterboarding Act," complete with definitions), that outlawed the practice, and the attorney writing the opinion is aware of the law and denies that it exists or claims that it says something different than it actually says.
Which raises a question: Since Mrs. Speaker Pelosi and others were aware that the practice was being talked about, if they felt it was illegal, why didn't they just pass a law specifically prohibiting waterboarding? Maybe if they did pass that law, it would highlight the fact that absent a statute prohibiting waterboarding, "the law" on waterboarding is unclear.
Oops! in September 2006 Sen. Kennedy tried to get waterboarding defined as a war crime. Didn't pass. Double oops!! in February of 2008, with Mrs. Speaker Pelosi front and center in the House, Congress passed a bill restricting interrogations to Army-field-manual techniques, prohibiting waterboarding by exclusion. Pres. Bush vetoed the bill.
Last question: Now that there are enough votes in Congress and a President who would sign the bill, why don't the Democrats finish the job and make waterboarding illegal?
This post isn't about the morality of waterboarding, torture, the trade-offs, benefits, burdens, etc. It is about the short-sighted cheapening of our system that occurs when a new administration acts like a new regime looking for payback, when Pres. Obama is ready to feed government lawyers to the wolves (actually having Mr. Holder do the feeding based on Mr. Holder's legal opinion?!!?), so long as the wolves agree with him and the government lawyers gave opinions to his predecessor.
On this one, I can honestly say that if the shoe were on the other foot, I would not be tempted to prosecute. I think the Chrysler bailout is unconstitutional (and an obvious waste of $10.5 billion in taxpayer money). But on a change of administration, I would not be for prosecuting the attorneys who said it was constitutional, no matter how ruinous the pursuit of the policy turned (is turning!) out to be.
Sorry for the long post.
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3 comments:
I absolutely agree. Whether or not I disagree with waterboarding or think it was effective, it was the in the past. Going after the attorneys who wrote the memos or anything like that accomplishes nothing. And since waterboarding is not illegal, how can you prosecute someone for breaking a law that doesn't exist? Eric Holder said he will prosecute the people who broke the law, but in this case, it doesn't seem to me that anyone broke the law.
Amen! Though I disagree strongly with torture it is fundamental to our legal system that one cannot be punished when there is no law. In the words of a book loaned to me by Devin "the American legal system espouses the principle, 'nullum crimen sine lege, nulla poena sine lege,' or 'no crime without law, no punishment without law." In order for one to be punished in our system they must have violated a law that was statutorily defined as a crime BEFORE the act was committed. This principle applies even though its exercise may result in dangerous and morally culpable persons escaping punishment. Exercising the power of law against acts that were lawful but are now viewed with abhorrence is a dangerous path. We may agree with the majority in power now and think that punishment is just but what happens when other majority's come to power and constitutional restraints against ex post facto laws, or bills of attainder, are disregarded? What if a majority with a different sense of justice came to power? It is against such abuse of power that the constitution stands as a defense for the minority. It stands as relief to the persecuted BUT only insofar as we adhere to it's divinely inspired tenets. These words are thus especially helpful: "the retroactive application of criminal law...is so abhorrent that we must occassionaly endure some frustration in order to preserve and protect the foundation of our system of law." (Hughes v. State, 868 P.2nd 730, 736.)
Awesome post, awesome comments so far. I want to play devil's advocate on this one (even though I agree with everything that's been said), just to encourage a little debate, but I've got a very timely ethics final today, so I'll have to postpone my comment until a later time.
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