THE BLOG
07/26/2013 07:44 pm ET Updated Sep 25, 2013

Is It Legal Malpractice to Fail to Get Holder to Promise Not To Torture Your Client?

One of the things I never expected to read was a promise by any United States official that a potential defendant in a criminal prosecution by our federal courts "will not be tortured."

The idea that the Attorney General of the United States of America would send such a letter to the representative of a foreign government, particularly Russia under the leadership of a former KGB official, was so preposterous that I thought the first news report I read about Attorney General Holder's letter concerning Edward Snowden was satire. The joke, however, was on me. The Obama and Bush administrations have so disgraced the reputation of the United States' criminal justice system that we are forced to promise KGB alums that we will not torture our own citizens if Russia extradites them for prosecution.

The standard joke that came to mind when I read Holder's letter was the bartender who brings out glasses to three customers and asks "which of you ordered his whiskey in a clean glass?" We take it for granted that no restaurant or bar will knowingly serve us our drinks in a dirty glass. I always took it for granted that no U.S. attorney general would knowingly allow a criminal suspect in U.S. custody to be the victim of torture, raped, branded, or a host of other forms of brutality.

It is difficult to conceive of why Holder would humiliate America by promising Russia that we would not torture Snowden were Russia to extradite him. Perhaps it was a clever propaganda ploy by Russia that Holder fell for like a rube (reprising his infamous failure when he was "played" by the fugitive Marc Rich's lawyers to deliver via President Clinton one of the most embarrassing pardons in presidential history).

More likely, Holder is under so much pressure from the intelligence "community" to punish Snowden that he thought he was being clever by promising Russia that we would not torture our own citizens -- in this particular case. Holder phrased his explanation in a manner that suggests he was trying to be clever: "Torture is unlawful in the United States." "Gitmo," of course, is not "in the United States." The locations of the many secret prisons the U.S. established in other nations were chosen so that we could torture suspects. The infamous historical parallel for this is that it was unlawful to hold slaves in England -- but England could dominate the Atlantic slave trade and hold millions of slaves in the Caribbean islands because slavery was unlawful only "in" England under English law.

More subtly, note that Holder says that torture is "unlawful" -- not "illegal." An act that is merely "unlawful" cannot be prosecuted as a crime. It may provide the basis for a civil suit. An "illegal" act can be prosecuted. After World War II, the United States prosecuted members of the Japanese military for torturing U.S. POWs (particularly by "waterboarding" our men). Those found guilty received severe sentences, often execution by hanging.

The CIA officials who conducted and ordered that we torture suspects through means that included waterboarding", in at least one case roughly 100 times, are understandably anxious to escape prosecution for acts that the U.S. has taken the position constitute war crimes warranting execution. Holder, therefore, claims that torture is merely "unlawful" (and only if inflicted "in the United States"). Torture, of course, is illegal. It involves the intentional infliction of intense pain and terror. It is designed to produce severe physical and psychological trauma. It inherently constitutes aggravated battery. It often leads to death even when the torturer does not desire that the victim die (at least prior to the extraction of additional statements from the victim). These forms of homicide are illegal and range from second degree to first degree murder.

Holder's letter promising the Russians that we would not torture Snowden also raises a practical question for the defense bar. Is it malpractice for defense counsel not to demand written assurances from the U.S. attorney general in any extradition case that the United States will not torture the suspect -- in any nation? Do defense lawyers need to extract a written promise that the suspect will not be assassinated by the U.S. prior to trial? How about a promise that the United States will not hold the suspect's family hostage (or worse) if they agree to waive extradition? It is obscene that Holder promised not to torture Snowden, but the underlying obscenity is that the United States did torture suspects and Holder has refused to prosecute those who ordered and conducted the torture. When a nation engages in torture, the consequences for its honor are long-standing and lead to a series of disgraces.