Bush et. al.'s Legal Guidance on Acceptable Torture

I think the vocabulary of "memo" and "opinion" makes these documents sound more innocent than they are. These opinions are the basis of the White House's torture program. Congress passed a law saying interrogators operating in good faith under the direction of these legal opinions should be protected from prosecution. So, I think a fairer characterization of these opinions is "policy." And, yes, I think the author of a torture policy should be liable for instances of torture under that policy as an abettor and accomplice to that torture. Just like when you hire a hitman to kill someone, you're guilty of murder even if the other guy pulled the trigger.

But, like you, I don't have much legal background. Recognizing that, I think it'd be fine to leave the legal niceties to the lawyers. I think the question we should concern ourselves with is, 'has an injustice been committed?' and 'who is at fault?' Then, have the prosecutors go get them with whatever legal tools they have at their disposal. I know the CIA tortured people. I know they were told to do it by the White House. I know the WH lawyers developed the torture policy. I know Bush and Cheney knowingly authorized torture. I know these actions were done in transgression of the law, international treaties, and the Constitution. A lot of people should be going to prison for it.

And, of course, no one of consequence ever will. Obama thinks national healthcare is more important than the nation's soul, so he won't spend any political capital rendering justice.

 

Awww man, I was ready to fight! Where did everybody go?

 

I don't completely agree with this. I think some people will end up being punished for those actions, but I believe that Obama would be a fool to spend the political capital from his election on prosecuting Bush folks. IMO, that would be a much better task to take on with the political capital from reelection.

 

Sorry, I didn't see this earlier...

Fair enough - but these ultimately are White House lawyers. They aren't authorized to make policy. They can only give guidance and recommendations. So while they resulted in policy, they were memos and opinions and legal briefs.

I understand the moral argument that they *should* be held liable, but is that really how the law works in regards to what they did? Or would this be breaking new ground in how liable people are in regards to policy making?

Here's where I disagree. Outside of the actual morality of torturing, the big complaint people have about how the torture policy came about is the manipulation of laws to create an outcome that the Bush admin wanted. If what they did is not actually illegal, then having prosecutors manipulate the law to try to prosecute them on new grounds or whatever sets just as bad a precedent.

That said, if there are clear laws that make sense to prosecute under and are designed to address the sorts of things that happened, I think it should be done. But I don't think prosecutors should be reaching and exploring ways to expand laws and find new interpretations or whatever that allow them to prosecute.

Honestly, here I agree with Obama. Getting health care costs under control *is* more important, if you have to pick and choose. Historically, lots of political administrations have done extremely shade and often illegal things, and are often not prosecuted. That hasn't destroyed the soul of our country, and nor will this. Prosecuting people won't undo the torture or rid of us that mistake. It will give us closure and punishment, but it doesn't undo anything. Comparatively, health care reform makes a real difference in millions of Americans lives in ways much more tangible and immediate to them. That's absolutely more important, in my mind.

 

A significant difference between Bush's manipulation of the law and a prosecutor's is that the prosecutor will be operating within a court system. The court is supposed to be adversarial. The prosecutor and the defense bring their best arguments and the court decides which ones hold water. So, there's nothing wrong with prosecutors pushing the envelope* because the court will reject applications that are inappropriate. I think Mississippi Burning and Al Capone provide good examples of creative prosecutions that were fair and rendered justice even though they pushed the envelope.

That said, I don't think you'd have to get very imaginitive to find laws that were broken by the White House when it comes to torture. I think the only confusion would be "what did you know and when did you know it" kind of stuff.

According to the Amnesty International site, there isn't a federal torture law, but there are many local laws that could apply. Probably, we didn't do any torture in the US, so that wouldn't be relevant. You could do a civil rights prosection. You could do a war crimes prosecution. I don't think that kind of stuff would be out of left field. The only thing surprising about it is the courage it would take to apply it to a President and his staff.

* The exception being when the defense is incapable and the prosecution can get away with something that is both unfair and unusual. But, the people we're talking about will surely have adequate defense lawyers.

 

I think the other thing you have to consider is what are the long-term consequences of it. We've seen the results of the political polarization from the Lewinsky nonsense - now, from day #1, the only purpose of the opposition is to universally oppose the other party no matter what. While that's always been an aspect of politics, in the past, the parties have been able to come together in compromises going back through our entire history. That's virtually gone now.

How much worse do things get if a Dem administration prosecutes the last GOP admin, especially by trying to expand the legal rationales? What happens when the GOP takes over again? Does it automatically set a precedent of looking for anything possible to prosecute the previous admin? Even if it fails, what does that do to our ability to govern?

 

I think you are absolutely right. Many conservatives identify with the Bush Admin and the War on Terror. They would see an attempt to prosecute as political shennanigans and would feel justified responding in kind at their next opportunity. Polarization would increase and cooperation would decrease.

But, the alternative is that our executive has carte blanche to abuse the powers of his office, commit atrocities, do whatever he likes without fearing justice. He'd have the body politik over a barrel.

I think our democracy has a fatal flaw. Democracy is supposed to protect us from tyrants. It has worked okay. But, when a villain comes along, what can we really do? Dictatorships can actually correct themselves after a power-shift. The USSR did it after Stalin. In a democracy, half the country identifies with and is morally complicit in the actions of any particular president. We're not going to say picking him and trusting him for 8 years was a mistake; that he pulled a fast one on us. So we look the other way and do nothing. Then the next president can do the same with impunity. Pick your poison: do you want a cycle of partisan revenge or ingrained executive corruption?

One reason for hope I would have is that I think the Supreme Court carries the necessary respect to change people's minds if a case were to come before them and they ruled against the Bush Admin. I think that would make conservatives rethink the merits of the accusation. (Of course, if they ruled for the Bush Admin, that'd reinforce the assumption that it was all partisan and it'd be on like Donkey Kong.)

All this is why I think the torture stuff is worth Obama's political capital. If he did it, his career would be over. And, he'd get nothing else done. And, he'd cause all sorts of political fallout and could well fail in the ened. But, I'd be happy to sacrifice one guy's administration to protect the office from corruption and protect the people from their government.