12/18/2005 11:00 am ET | Updated May 25, 2011

The President's Men

Mafia and white-collar defendants want legal opinions that they know are wrong but are defenses if they are prosecuted. The criminal defendants claim they thought they were doing what's right because their lawyers said so. This disproves any claim that they had a criminal intent, where intent is an essential nature of the crime. It is a rock-solid defense that more often than not persuades the jury that even though what the defendant did was wrong, he should be found innocent because he relied on his lawyers.

There is never proof that the criminal defendants told their lawyers to write wrong legal opinions. On the contrary, the proof is that the defendant did not know if it was right or wrong and wanted to make sure that it was right before he did the money-laundering or bought stocks on inside information.

This shows how careful the defendants were.

The lawyers know exactly what they have to do. The lawyers know their jobs, and the wonderful pay they receive is dependent on these contrived decisions. The stronger the opinion, the better the client likes it.

If the lawyers don't do it, there are hundreds of other lawyers who will do it. The rewards are attractive. In order to self-justify, they will often start to believe their own lies.

That's how President Bush, Vice President Cheney, and Secretary of Defense Rumsfeld work. When they need legal opinions to justify torture, Alberto Gonzales, the Attorney General, John Ashcroft, his predecessor, and those who work for them, particularly Jon Yoo, the most scholarly and reckless of them, all give the required opinions.

They write, citing dozens of cases, in forty-page briefs, that the Geneva Convention does not apply to unlawful combatants. That torture is uniquely permissible because of the unique nature of the War on Terror.

When the politicians need a legal opinion that says you can jail American citizens and aliens nearly forever, the lawyers deliver it. When they need a legal opinion that says habeas corpus does not apply to the detainees, and the federal courts have no jurisdiction over them, the lawyers deliver it. When the President wants an opinion that says illegal surveillance of American citizens is legal, he gets it.

The warrantless wiretapping and eavesdropping violates the Federal Communications Act and is crime. There is no question of that. It is an impeachable offense. The politicians' defense is that they rely on the best lawyers on the country, those who work for them at the Department of Justice, and at the Attorney General's office.

When the President wants an opinion that the unique war on terror gives him unique Presidential powers that allow him to do nearly anything, he gets it. I fear that if he wanted to get a legal opinion stating that he had the power to execute people without the intrusion of the legal system, he would get it.

The President, Vice President, and Secretary of Defense win, we lose.