The Problem Being ???

I agree. Even absent the salutary effect of shedding light on what took place, prosecuting the villains at the scene of the crime is still better than nothing at all.

There is something rather obviously fucked up about a political culture in which high ranking officials can make the opposite claim

Ah yes, the famous “Reverse Nuremburg,” as described by The Editors at The Poor Man Institute.

We’ve got what amounts to a reverse Nuremberg defense, where Bush administration officials are let off the hook because they were only giving orders.

Greenwald

Worse still, Holder — almost certainly in violation of our treaty obligations that compel prosecution for torturers and bar its legalization (obligations which the U.S. Constitution deems to be the “supreme law” of the U.S.) — will establish the dangerous “principle” that high-level political officials are free to break the law, and are even free to torture, provided they first obtain a permission slip from a low-level DOJ functionary. If, as appears to be the case, this will be the full extent of Holder’s torture investigations, then it is hard to argue with the statement of Human Rights Watch Director Tom Malinowski that “an investigation that focuses only on low-ranking operators would be, I think, worse than doing nothing at all.”

Here is Marcy Wheeler “emptywheel” of FDL today making the same point.

Take the claimed worries about whether the legal advice from one Administration carries over to another one.

A much-discussed question is whether the legal reassurances of one administration carry over to its successor. “When a previous administration says something was legal, and the next says it doesn’t matter, the result is hesitancy to take on cutting-edge missions,” the former senior official warned.

I can’t count the number of times that Obama Administration officials have stated that no one who followed John Yoo’s transparently bad legal advice will be prosecuted, but here’s how Eric Holder reiterated that point in his announcement of the investigation.

Further, [the men and women in our intelligence community] need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.

I forget where I saw it, but someone, somewhere made the excellent point that nobody seems to worry all that much about the morale impact of reining in overzealous prosecutors.

The CIA does what the President wants it to. The pretense that Democratic Presidents, unlike Republicans, have really, really wanted it to behave but were duped by the “rogue” CIA has always been transparently ridiculous. Obama is just the latest example.

There is something rather obviously fucked up about a political culture in which high ranking officials can make the opposite claim – that we want intelligence officers to be able to break the law by torturing people

There is indeed.

And it’s not just the political culture, it’s the culture in general. Picked up the LA Times yesterday and here’s a letter to the editor criticizing their negative review of Inglourious Basterds. “Go see it,” the letter-writer says, and adds: “It took me a day to figure out why Turan and other liberal critics berate this movie. It promotes the liberal anathema that ‘torture works.'” It’s hard for me to imagine that, a few years ago, anyone would have publicly defended a summer blockbuster on the grounds that it was soundly pro-torture.

…will establish the dangerous “principle” that high-level political officials are free to break the law, and are even free to torture, provided they first obtain a permission slip from a low-level DOJ functionary.

I believe this principle is well-established and well-known. It’s usually presented in a slightly different form: “prosecution of national leaders is inherently political,” or something like that.

High-level political officials are free to do anything they want; any flimsy pretext, no matter how nonsensical will suffice. On the other hand, high-level political officials can also be prosecuted under any nonsensical pretext, if that’s how their political stars align.

This has nothing to do with the laws, nor is it a US-specific phenomenon.

bob and I are in at least 95% agreement – and maybe 100%, unless bob endorses Greenwald’s view that prosecuting the underlings is worse than no prosecution at all.

unless bob endorses Greenwald’s view that prosecuting the underlings is worse than no prosecution at all.

Greenwald’s point is that Holder intends to prosecute the underlings for exceeding or not following illegal orders. It is Nuremberg exactly reversed, is evil, and yes, much worse than no prosecution at all. I repeat, Holder is prosecuting for not following the DoJ memos.

If preceded by prosecution of those who gave the orders, so that the orders/memos were themselves established as obviously illegal, than as IIRC after Nuremberg, the underlings could and should be prosecuted.

Can law prevent such “forward leaning”? Will threats from the Atty. General seriously stop such activity? Won’t the distinction between what is legislative and executive only be confused further through judicial decision? Luckily there will be smart lawyers to figure out our smart power.

I only ask these questions because it seems to me that if one wants to keep intelligence officers–low and high–in their place one may as well not authorize intelligence gathering in the first place. No matter how much one uses social statistics to prefigure certain contingencies regarding intelligence gathering, there still remains that which is outside the law and that which requires judgment.

Above “peter” made a remark that espionage by definition requires breaking the laws of other nations–let alone that which has been agreed upon internationally vis a vis treaties, agreements, and the like. This is wise–it may be wise as serpents, but nonetheless wise. This probably leads to a dangerous habituation of character with regard to law simply–foreign or domestic. The film the “Good Shepherd” points toward this–shepherds have knack as much as rulebooks, and I suppose we are all sheep nonetheless.

Does transparency mean that typical decisions regarding human motive must go by the wayside? Have we “progressed” to such an extent that we need no longer consider the need for dirty–let alone wet–work?

What is it Holder is looking for? More discovery? What will we discover–that the US government has authorized killing terrorists? I already thought this was the policy.

We can all lament the fact that this is the state of affairs regarding US foreign relations, but I honestly have no idea what Holder is up to in this investigation. I think that the “reverse Nurenburg” defense will be used as well as the good ol’ fashioned I was just following orders excuse. The buck will be passed–traces of cocaine and everything else–and there will be an effusion of indignation until it comes to the surface several years from now. This investigation will become an exercise in silliness, but I’m sure I will read much indignation and talk about democracy and the importance of civil liberties in the newspaper.

Bush will be there to blame, while “renditions” to far off spots will continue under Obama. Meanwhile we at home will piously speak of the rule of law–instead of pointing to its advantages as well as its limits. no one will try to wage a defense of the rule of law in terms of the real problems that may or may not exist.

“On this planet, we have a long tradition …”

Indeed, but what from what authority to the laws stem.

Law being “intellect without appetite” remain precisely so. Hence laws usually require some sort of preamble, i.e., their persuasive aspect. Somethings remain beyond persuasion–this is the reason for the invention of executive power in the first place.

Besides law is abstract and general, while life political or otherwise in inimitably concrete and particular. One must beware of law being divorced from life–regardless of how true one holds to the law or how true one holds the law to be.

For crying out loud, we are not talking about divine law here. So what planet are you from? Or do you live in perpetual orbit?

Who said I liked it?

Bob McManus: Greenwald’s point is that Holder intends to prosecute the underlings for exceeding or not following illegal orders.

I assume you’re referring to his emphasis that those who followed the orders in “good faith” should not fear prosecution. Why would those who disobeyed illegal orders be prosecuted? The only possible explanation, it seems, is that they were given clear orders to torture and they did not torture. Perhaps Holder’s having difficulty imagining lawyers would issue explicit written orders to torture.

And my details can be wrong, I didn’t look up the permitted number of waterboardings. See Greenwald or Wheeler. There are much better on this than I.

Anything that keeps the issue alive and open for public discussion is better than ending the debate with Cheney victorious.

I’ve been trying to balance this consideration with the equally real concern nicely summarized by Bob McManus @25, and (at the moment) I think I come down on your side. But I’m profoundly depressed that I’m called on to confront such a miserable tradeoff at all. How long has it been since a President actually took his oath of office seriously?

I don’t see how not prosecuting officers who followed the memos validates the memos, at least in principle. The law allows that you can do something illegal but not be liable to punishment because you had some excuse, e.g. that you had a sincere and reasonable belief (given your evidence) that your action wasn’t illegal. Given the memos, it would be hard for a prosecutor to prove that that wasn’t the case with these officers. So the decision not to prosecute wouldn’t be based on the idea that there wasn’t an actus reus (guilty act) in following the memos, but that you couldn’t prove there was a mens rea (guilty mind). Maybe the practical effect of not prosecuting will be to validate the memos, in some people’s minds. But the legal justification for not prosecuting needn’t do so.

I don’t give a rat’s ass if the CIA is “demoralized.” It’s been a dysfunctional organization for decades, and if certain people in it are demoralized because they can no longer break the law with impunity–especially when told they can by other lawbreakers–then they don’t belong in the agency.

Put more simply, there are way too many people at the CIA who rationalize their behavior by asserting that they are defending the country, when, in fact, their actions are destroying the reputation of the country and precipitating the very terrorism they claim to be countering.

Put even more simply, who could have even a basic, working knowledge of both Common Article 3 and the War Crimes Act and not come to the thoroughly sound opinion that the Bybee/Yoo/Haines memos were politically corrupt and legally insupportable?

Only people who wanted cover for their illegal actions. Those are the people with whom we should find sympathy because they’re “demoralized?” The memos show, quite clearly, that their construction was a cooperative effort on the part of the OLC, the White House and the CIA, rather than a dispassionate review of all legal precedent relating to torture.

I’m supposed to sympathize with tactics that more resemble those of organized crime than a government agency subject to oversight?

Horseshit.

Tom (#30), I’m not a lawyer, but I don’t think that’s quite right. In general, ‘ignorance of the law is no excuse,’ so you can’t deny mens rea by claiming that you didn’t know that what you were doing was illegal. Generally speaking, mens rea only requires an intention to cause a particular consequence, eg. grievous bodily harm or death in the case of murder, not any intention or knowledge regarding its illegality.

‘Superior orders’ appears to be an exception to this where there are two defences available: ‘manifest illegality’ provides a defence (independent of mens rea) if the orders were not manifestly illegal. Alternatively the ‘mens rea principle’ allows the existence of the orders to be considered as a factual detail or a mitigating factor when determining mens rea.

I’m not sure I understand the issue about ‘validating’ the orders. I suppose that if the DoJ decides not to prosecute the officers then that might indicate that the DoJ doesn’t think that it can establish that the orders were ‘manifestly illegal’. Maybe that grants them a minimal kind of ‘validity’?

Chris, you’d like the government to prosecute and punish everyone who did wrong without regard to mitigating circumstances, but the law is actually more merciful than that (and incidentally most people think that’s a good thing, and I wouldn’t expect you to be able to persuade them otherwise); since there is no way for people to know what’s right except for them to be told, we put a certain amount of responsibility on the people who interact with them most closely, and (in most cases) don’t require them to go against what their local authority figures tell them.

Chris, you’d like the government to prosecute and punish everyone who did wrong without regard to mitigating circumstances

Prosecute, yes. Punish, no. Mitigating circumstances are for the sentencing judge to consider, and that’s fine. But consideration of mitigating circumstances comes at the end of the process, not the beginning; and for good reason.

Maybe some torturers *should* receive lessened or even suspended sentences, depending on the precise nature of their acts and the circumstances. Some could even be presidentially pardoned. (The suspected-but-not-actual torturers, if any, should be acquitted. Prosecution isn’t necessarily persecution.) But you can’t be in a position to judge those things until after you’ve uncovered the facts and determined whether or not they violated the law in the first place. Prosecution and trial develop the factual record to determine whether or not there is any basis for leniency.

since there is no way for people to know what’s right except for them to be told

This is where “ignorance of the law is no excuse” really does apply. Right and wrong are difficult even for philosophers, but the text of the law is publicly available and people who don’t bother to check whether their actions are *legal or illegal* assume the risk that they are illegal.

Again: the whole point is that I (and people who agree with me on this issue, if any) *want* subordinates in this type of situation to apply the law as an independent check on their superiors’ plans. Exposing them to personal consequences when they obey illegal orders is a powerful way to do that. Of course the givers of illegal orders should be prosecuted *too* — but when underlings are less willing to follow illegal orders, officers who give them do far less damage, and that’s the end goal.

Montag has gone to the heart of the matter. Our boastful, self-important premier intelligence agency is a pack of demoralized bullies and crybabies. Boo fucking hoo.

#42: So normally when people want to know if something is legal or not they seek legal advice. Advice from the US AG is of pretty high standing.

AFAIK, there is no other area of law where “my lawyer told me it was OK” is an acceptable legal argument. You just have to sue your lawyer for malpractice for giving you false advice.

I have no problem with such suits in this case. People whose job it was to know and explain the law lied about it, and they should be held responsible for that. (And so should the people who ordered them to lie.)

But the basic principle of the rule of law is that the law rules. Neither your boss nor your lawyer can give you permission to break it. (I’d say “otherwise people will start looking for lawyers that will tell them it’s OK to break the law”, except that’s exactly what already did happen in this case. And needs to be stopped from happening again.)

@40: That’s exactly why I object to “they were following the AG’s advice” being used to stop the investigation-trial-sentencing process before it starts. Whether or not that should be considered in favor of some leniency *after* the facts are known (maybe, in some cases, for people who didn’t really know what was going on), it certainly isn’t a good reason to not even look.