On the issue of the release of the interrogation memos and the decision not to prosecute the interrogators, once again President Obama has shown the courage to do the right thing while angering some elements on both the left and the right.
The latter decision on non-prosecution was based on the fundamental principle that all Americans understand -- fair play.
"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," said Attorney General Eric Holder.
"Sanctioned in advance" is the key phrase in Mr. Holder's explanation. The principle of "good faith reliance" by the interrogators has long-standing precedent regarding certain crimes and civil actions.
Mr. Obama has also indicated resistance to criminal prosecutions of any former Bush Administration officials for the policy judgments they made. If President Lincoln was opposed to prosecuting Confederate leaders who were by definition guilty of treason, then Mr. Obama's judgment, despite anger on the left on this issue too, is defensible.
Jonathan Turley -- a professor at George Washington University, a thoughtful liberal and good friend -- appeared to reject the "good faith reliance" defense Friday night on MSNBC as he criticized President Obama's decision to immunize the interrogators from prosecution and cited the "Nuremberg rule," applicable to Nazis responsible for the Holocaust, that "following orders" is not a defense to war crimes and crimes against humanity.
Had MSNBC chosen to offer a counter-perspective, which they rarely do on their evening talk shows, the obvious and vast difference in the two cases could have been pointed out. CIA interrogators were trying to obtain information from detainees in order to prevent a future Sept. 11, relying on the advice of attorneys working for the world's greatest constitutional democracy. They were not trying to kill the detainees, much less planning a mass murder of millions, as the Nazis were.
But there are still ways to hold higher-ups accountable. The first is the establishment of a "Truth Commission."
While I still have concerns that such a commission might too easily become a media circus and present opportunities for raw partisanship, if such a commission could be conducted along the bipartisan and professional models of the Warren or Sept. 11 commissions, it could have the benefit of allowing those involved to explain themselves publicly and let history judge.
The second method of accountability is the ongoing investigation by the Justice Department's Office of Professional Responsibility on potential ethical and professional violations by the senior attorneys in the Justice Department.
One of those undoubtedly under OPR investigation is John Yoo, who in 2002 served as deputy in the Justice Department's Office of Legal Counsel (OLC) and wrote or co-authored some of the memos claiming that waterboarding, techniques that inflict intense pain, terror, and human degradation, did not constitute what has up to now been understood to constitute illegal torture.
Others likely included in this investigation might be subsequent authors or recipients of similar memos, including Jay S. Bybee, now a sitting judge on the 9th U.S. Circuit Court of Appeals, Steven G. Bradbury, Mr. Bybee's successor as OLC head, and John A. Rizzo, then and now acting general counsel of the CIA.
Mr. Yoo advanced one intriguing potential defense to this scrutiny in a recent public comment. "We were functioning as lawyers," he is quoted on CNN.com as saying. "We don't make policy. Policy choices in these matters were up to the National Security Council or the White House or the Department of Defense."
But Mr. Yoo may be missing the ethical obligation that all attorneys have, regardless of client (or "policy") objectives: and that is to base their legal opinions on sound and plausible facts and legal precedents before reaching conclusions. It could be professionally unethical -- and grounds for disbarment -- for a lawyer to start with a conclusion that he or she thinks the client wants, and then come up with non-plausible, legally specious reasons for justifying that conclusion.
There is certainly a good possibility that that is exactly what happened here. But as has been argued by David Rivkin, a brilliant conservative attorney and White House associate counsel in the first Bush administration, these memos appear to be good faith "careful and nuanced legal analysis" seeking the outer parameters of the definition of torture, involving "careful and nuanced legal analysis."
Drawing the line between good faith and result-driven unethical legal analysis is not easy, but the DOJ's Office of Professional Responsibility and state bar associations should proceed with full and fair investigations of the government attorneys involved.
But the inquiries, however, cannot stop with these lawyers.
To whom was Mr. Yoo referring when he said others made the "policy choices" concerning torture and ignoring the Geneva Convention? They too must be held to a transparent process that could lead to some form of accountability, even if nothing more than public and peer opprobrium.
So far we have suspicions but no hard evidence. And the suspicions, published fairly widely, always seem to go back to Vice President Dick Cheney and his reportedly powerful and domineering chief of staff, attorney David Addington.
He and Mr. Cheney should certainly be high on the list of those questioned by any Truth Commission on other Justice and congressional investigations to explain their positions fully.
Asked by Rep. Jerrold Nadler, New York Democrat, during a congressional hearing about whether he had "contributed to the analysis or assisted in the drafting of the August 1, 2002 interrogation memo," Mr. Addington at first answered a flat "No."
But when Mr. Nadler followed up with, "You had nothing to do with that?" Mr. Addington replied: "No, I didn't say I had nothing to do with it" -- a classic non-denial denial that he never was required to clarify.
Releasing these memos must have been an especially difficult decision by the president, since he faced opposition from his own CIA chief, Leon Panetta, as well as respectable members of the national security and intelligence community, such as former Attorney General Michael Mukasey, former CIA Director Michael Hayden, and former Homeland Security Secretary Michael Chertoff.
Mr. Obama tried to but didn't entirely quiet these concerns by his public assurance that this disclosure decision reflected "extraordinary circumstances" and would not set a precedent for other releases.
Nevertheless, Mr. Obama took the heat from all sides -- so what else is new? Whether it is last week's decision on immunizing interrogators or the weekend's outreach to Cuba and Venezuela, he shows an amazing resilience in withstanding flak from the left and the right. He remains hugely popular among most Americans because his focus remains on getting the government back into the "solutions business" where most of the American people want it to be.
# # # # #
---Lanny Davis, a Washington lawyer and former special counsel to President Clinton, served as a member of President Bush's Privacy and Civil Liberties Oversight Board. He is the author of "Scandal: How 'Gotcha' Politics Is Destroying America."
This article appeared in Mr. Davis's weekly Washington Times column, "Purple Nation," published on Monday, April 20, 2009.
http://pundits.thehill.com/2009/04/20/the-torture-memos-obama-holder-strike-the-right-balance-again/
Lanny, would you be so sure or so smug if it had been your son or daughter who was tortured?
captured Americans?
1) To all government employeees: Each and every one of you are required to be a better lawyer than those in the Justice Department. If you have the slightest doubt about any legal opinion or directive of the Justice Department, you must refuse to follow it, on pain of prosecution.
2) To all Justice Department lawyers: never commit to writing any opinion that you think people might later disagree with, on pain of prosecution.
http://www.law.cornell.edu/supct/html/07-513.ZD1.html
This has been coming on for a long time, however. There's not a whole lot of the 4th Amendment left. Once you establish a subjective standard, which this is, you've all but justified warrantless searches and seizures.
I don't agree with the SCOTUS, but it is the SCOTUS and there is nothing I can do about disagreeing with it cause it has the last word.
Obama made a decision not to prosecute because he wants to have a good relationship with the C.I.A. That's a decision that will serve not only Obama politically but the Bush administration officials as well. It serves politics but it doesn't serve justice.
Seeking justice is moving forward, not backward.
The certain crimes and civil actions that can be successfully defended by "good faith reliance" all have willful action as a component of the crime.
"Good faith reliance" means that before you act, you go to a competent attorney and receive professional advice that you are acting legally when you are going to act yourself. For example, imagine that you are going to foreclose and evict someone, and you go to an attorney, who sanctions the actions. Then, for some reason, it turns out the action was illegal, and you are charged. You might successfully defend because foreclosure is your willful action on the grounds of "good faith reliance" on the lawyer.
At trial, issues for the jury will be whether you acted in good faith, whether you made a true and complete report to the attorney, and whether you followed the attorney's advice to the letter. If not, you lose. If so, the attorney is rightfully brought into the cross hairs, both criminally and civilly.
In the crime of torture, there is no willful component, torture is torture is torture, the intent of the torturer need not be established. Torture is a crime except if you yourself are under duress or otherwise incapacitated in free will when you administer torture.
Oh, and the Nuremburg reference was to people who we convicted and hanged for... waterboarding. Nobody was comparing torture to the ovens. That's a cheap straw man.
The Nuremberg trials had three (3) counts - Crimes against Peace, War Crimes and Crimes against humanity. The war crimes included the mistreatment of prisoners of war. The trials were not limited to what happened in the extermination camps.
Nuremberg Principle IV
"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
A moral choice was available to all of these people and each of them broke the international laws against torture.
WWII Japanese soldiers were also tried for using waterboarding to get information from American soldiers. They too were following orders and doing what was needed during a time of war.
Today the UN special rapporteur on torture, Manfred Nowak, says the US is bound under the UN Convention against Torture to prosecute those who engage in it. If President Obama does not pursue the investigation of these crimes he becomes a willing co-conspirator.
As an American I am offended by your saying that Obama is protecting criminals from a sense of fair play. "Superior Orders" is not a defense for torture, not ever. It is unfortunate these individuals did not have the morals or the courage to say no and to blow the whistle. Shame on them. They put us in danger and helped terrorists recruit more people. No thank you from me.
Uhhh...ok.....NOT!
Nowak added, "It is a violation of binding international treaty law in this case, because this is an international law convention -- and it provides unequivocally that states are not merely obligated to make torture a crime, but also to prosecute any incidents of which credible evidence can be found."
According to article 2 of the Convention on torture neither exceptional circumstances nor order[s] from a superior officer or a public authority can be used to legally justify torture.
Given the OLC's legal opinions overturned settled law it is unlikely they will stand in a court of law.
Certainly we are a nation of laws, and it is very clear they were violated. At the same time, we can't act as if the prosecution doesn' have some pretty serious implications for out country. I hope he will do the right thing, but it's easier for you and me to sit here and gripe about it than it is to give the green light as the actual President.
As for courage, remember that even though a court ordered the documents produced, he could have further tied up the proceedings for years, or as Bush did, just not comply. All the courts can do is find the government in comtempt, as they did in other similar cases. Bush & Co. just ignored them. What are they going to do, send the court's baliff down to arrest the President? He didn't have to comply, but he chose to out of respect for the law, a promise he made for transparency, and his abhorrance of torture as indicated by his immediate actions upon entering office.
As far as your money back, so you would rather McCain or Bush back? Riiiigghhhtt...
Of course, if I were one of those military personnel convicted by a court martial, I wouldn't be holding my breath waiting for a pardon.