The Problem Being ???

by Henry on August 30, 2009

The “Washington Post”:http://www.washingtonpost.com/wp-dyn/content/article/2009/08/29/AR2009082902388.html?hpid=topnews cites worries among intelligence officials:

A. B. “Buzzy” Krongard, the third-ranking CIA official at the time of the use of harsh interrogation practices, said that although vigorous oversight is crucial, the public airing of once-classified internal assessments and the prospect of further investigation are damaging the agency. “Morale at the agency is down to minus 50,” he said.

… Krongard, one of the few active or retired CIA officers with direct knowledge of the program willing to voice publicly what many officers are saying privately, said agency personnel now may back away from controversial programs that could place them in personal legal jeopardy should their work be exposed. “The old saying goes, ‘Big operation, big risk; small operation, small risk; no operation, no risk.’ ”

“If you’re not in the intelligence business to be forward-leaning, you might as well not be in it,” Krongard said.

‘Forward-leaning’ in this context being a rather transparent euphemism for being ‘willing to break the laws forbidding torture of captives.’

There is of course a case that relatively low ranking CIA officers should not be prosecuted for torture while the high officials that ordered them to torture, or provided flimsy legal justifications for torture (or perhaps indeed encouraged them to go beyond the guidances provided) get off scot free. But I think that the pragmatic case that these officers should be prosecuted is a stronger one; on two grounds.

First, and most obviously, bringing these cases to trial may lead to the uncovering of new evidence. The most obvious defense open to these officers is that they were indeed only following legally mandated instructions – and it seems at least plausible to me (as a non-lawyer) that a judge will be more likely to allow discovery on potentially exculpatory evidence for these officers than for other potential plaintiffs, such as those who were in fact the victims of this torture. This is of course screwed up – but it is (as best as I can tell) part of the legal culture of this country. This evidence might perhaps (not very likely, given politics – but then I would not have predicted Holder’s decision a month ago) lead to the prosecution of high level officials who were more directly involved in creating the policies in question and possibly encouraging their underlings to go beyond even these policies.

Second, the more cautious that low-ranking CIA officers are about breaking the laws criminalizing torture in future, the better. I _want_ them to be worried that they will be hung out and left to dry by their political masters if they break the law. This will give them a strong rationale to say no, the next time that they are asked to, and at least partially reshape the incentive structure in benign ways. 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, and that not giving them this license ‘lowers morale.’ But you would not know that from reading the _Washington Post._

{ 44 comments }

1

politicalfootball 08.30.09 at 4:02 pm

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.

2

bob mcmanus 08.30.09 at 4:08 pm

As I understand Holder’s position, only those agents exceedinf their orders will be prosecuted.
Only If their superiors or the White limited them to the use of an electric drill on one knee, and they drilled both knees, is Holder interested. See Greenwald. Actually, I should not have exaggerrated, the memos linted the number of times they could waterboard, and some agents exceeded that number. Holder finds that going beyond the written limits morally disturbing.

This is the absoute worst possible prosecution, and I find Holder a monster, posibly much worse than anyone in the previous administration.

3

bob mcmanus 08.30.09 at 4:23 pm

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.”

4

Substance McGravitas 08.30.09 at 4:27 pm

There have already been prosecutions, it’s clear there should be more. I’m for starting anywhere.

5

bob mcmanus 08.30.09 at 4:44 pm

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.

6

bob mcmanus 08.30.09 at 4:58 pm

I am commenting too much, but if you want to imagine one of Obama’s famous “12 dimensional chess” possibilities, it might be possible that if Holder goes before a judge sand says that the officer was authorized to waterboard 5 times a week and must be prosecuted for waterboarding ten times in a week, the judge might step in and say that all waterboarding was illegal. Thus moving the investigation up.

But since neither the prosecution or defense would make such an objection, I don’t think anyone in earshot would have standing. I’ll leave that to the lawyers.

7

fishbane 08.30.09 at 5:03 pm

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.

8

Thomas 08.30.09 at 5:03 pm

“‘Forward-leaning’ in this context being a rather transparent euphemism for being ‘willing to break the laws forbidding torture of captives.’”

Not exactly, it’s an euphemism for all kind of illegal activities CIA has been involved in over the years: assassinations, overthrowing governments etc. It’s not as if CIA never broke the law before Bush.

9

Steve LaBonne 08.30.09 at 5:16 pm

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.

10

peter 08.30.09 at 5:20 pm

Thomas — Breaking the law is what intelligence agencies do: if not the law of their own country, then the laws of other countries. Gathering and reporting secrets about other Governments is usually against the law in those other countries, and thus there is an essential criminality inherent across the entire intelligence business. What is suprising is not that CIA, KGB, ASIO, etc, also break their own country’s laws, but that they do it so infrequently, at least compared to the daily illegalities they commit when spying overseas.

11

lemuel pitkin 08.30.09 at 5:24 pm

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.

12

David 08.30.09 at 5:27 pm

I think that the “Reverse Nuremburg Defense” originated in a SNL skit many years ago when, iirc it was Dan Akroyd, referred to the Nazi war crimes defendant who offered the novel defense of “I never killed anyone, I only gave orders.” That has stuck with me ever since. Deplorably, it really has become a common defense by the media apologists for high ranking criminals.

13

Henri Vieuxtemps 08.30.09 at 6:14 pm

…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.

14

Joshua Holmes 08.31.09 at 12:20 am

The CIA are the people who didn’t predict 9/11, didn’t predict the fall of the Soviet Union, didn’t predict the collapse of the Berlin Wall…tell me again what we’re paying them for? Abolish it, open their records, and prosecute away.

15

politicalfootball 08.31.09 at 12:44 am

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.

16

dan 08.31.09 at 1:16 am

“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.’”

I have trouble seeing this as the case given that the movie’s super-effective Nazi interrogator breaks people primarily via drinking milk with them and having them try on shoes. Inasmuch as the Basterds themselves argue for anything there it’s that torture is an effective tool for spreading terror, which I don’t think its detractors are really trying to deny. /derail

17

bob mcmanus 08.31.09 at 1:42 am

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.

18

SAM 08.31.09 at 1:48 am

All this controversy could of been avoided if the CIA had been under the control of men that up hold respect for the laws of this country. Using traditional methods that have passed the test of time would of been a suitable fix..
We all know gathering intelligent is a dirty business,
but making it even dirtier by ignoring the obvious legal avenues is beyond any intelligent reasoning. The powers to be should be held accountable for the policies they endorsed.

19

John 08.31.09 at 2:41 am

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.

20

politicalfootball 08.31.09 at 2:51 am

Will threats from the Atty. General seriously stop such activity?

Ask the perps. It seemed pretty goddam important to the people involved to get an explicit OK from the AG.

there still remains that which is outside the law and that which requires judgment.

Your point being what, exactly? That laws are futile where you’re from? On this planet, we have a long tradition to the contrary. The rule of law turns out to be an extremely important to the operation of a successful society.

21

John 08.31.09 at 3:05 am

“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?

22

Ceri B. 08.31.09 at 4:25 am

John, that’s a lot of words just to say “I like knowing our masters can hurt anyone they’re afraid of or can cobble a charge against.”

23

John 08.31.09 at 4:41 am

Who said I liked it?

24

nickhayw 08.31.09 at 6:20 am

Prosecuting low-ranking CIA officers might help keep (future) governments clean. It’s a backwards, inefficient way of achieving that end, but as long as the government wants the CIA to do its bidding, and as long as the successful prosecutions of CIA lackeys are fresh in the minds of other lackeys, then I can’t imagine the government having much success trying to mandate illegal operations etc.

Then again, I suppose if it’s only the ones breaking the memo recommendations that are prosecuted, the path is still wide open for atrocities sanctioned by wayward legal opinions. For that to end, John Yoo and co. need to go down.

25

bianca steele 08.31.09 at 1:52 pm

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.

26

bob mcmanus 08.31.09 at 3:30 pm

Why would those who disobeyed illegal orders be prosecuted?

You cn check the Greenwald and Wheeler links, but I think the case is that the officers were given strict written limits, for instance that no prisoner would be put into a stress position for more than twelve hours without a rest. 12 hours would then have been defined as “enhanced interrogation” but not torture. An officer who kept the prisoner in a stress position for 16 hours could then be prosecuted for disobeying orders and for torture.

I could look this up, but I believe KSM was waterboarded 183 times in two months, ad the gov’t shrinks had somehow determined that say more than three waterboardings a week would be torture. Therefore the agents who waterboarded KSM more than allowed by orders could be prosecuted for torture.

Since I, and most decent human beings, consider stress positions and waterboarding to be torture, I consider the memos detailing the proper limits to torture to be illegal orders under the relevant conventions. Prosecuting the officers for exceeding the memos I feel validates the memos in some way, and institutionalizes and bureaucratizes torture in a way that is very dangerous. There is, to me, something particularly horrifying about the written regulations and records kept by the old Inquisition, although I am having trouble expressing my feelings

I do admit to being torn on the issue. IIRC, the one officer who was convicted had, after subjecting a prisoner to what I think the Spanish called the strappado for hours, kicked the prisoner in the crotch, contributing to a death. The officer was convicted for the kicking, not the strappado, which was permissable under regulation. I certainly agree that the officer should be punished for the kicking, but I can’t help but feel that that in a way validates the strappado.

Way too long.

27

bob mcmanus 08.31.09 at 3:31 pm

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.

28

politicalfootball 08.31.09 at 4:01 pm

Prosecuting the officers for exceeding the memos I feel validates the memos in some way, and institutionalizes and bureaucratizes torture in a way that is very dangerous.

It’s appalling and offensive, absolutely. But not prosecuting those officers also validates the Bush/Cheney policies.

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

29

Steve LaBonne 08.31.09 at 5:04 pm

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?

30

bianca steele 08.31.09 at 6:00 pm

I don’t agree that if an institution engages in questionable activities–e.g., from torture to charging what the market will bear–the institution as a whole should be considered a law-free zone.

Prosecuting the officers for exceeding the memos I feel validates the memos in some way

In some way, yes: it validates the idea of a memo, that officers should pay attention to memos written for the purpose of delineating the regulations that should govern their actions.

31

Tom Hurka 08.31.09 at 7:14 pm

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.

32

Donald Johnson 08.31.09 at 10:32 pm

“Prosecuting the officers for exceeding the memos I feel validates the memos in some way”

“In some way, yes: it validates the idea of a memo, that officers should pay attention to memos written for the purpose of delineating the regulations that should govern their actions.”

Uh, no, not just that. It does what Bob said–it treats those torture lite-permitting memos as though they were legitimate instructions on how far torture could proceed. And it treats CIA interrogators as moral numbskulls who shouldn’t be prosecuted for torturing people if they stayed within the limits set out by those memos. Now maybe CIA interrogators are moral idiots, but in that case they could be let off the hook on grounds of mental incapacity (or whatever the legal term would be).

33

montag 08.31.09 at 10:53 pm

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.

34

bianca steele 09.01.09 at 12:09 am

Donald Johnson:

It seems you want to make this about the moral intuitions of the CIA officers. These are people who were asked on their job interview whether they’d be willing to sock a guy in the jaw or worse in order to intimidate him and get information from him, and their answer was “how hard?” They were told what the limits were (and why), told the limits would be enforced by the DoJ, and then told they needed to get information–and some of them decided only half their instructions really mattered. They counted on something coming up to make that enforcement moot.

They were moral free agents who made decisions on the basis of the information they had, rather than demoralized idiots who had to be told what to do minute by minute.

35

engels 09.01.09 at 2:20 am

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’?

36

Chris 09.01.09 at 3:08 pm

I think the orders are irrelevant to this kind of prosecution. The issue is whether the *actions actually taken* were against the law – since the memos have no authority to rewrite the law, the content of the memos has no bearing on this question. At most, memos ordering person X to commit act Y might weakly corroborate evidence that person X did, in fact, then commit act Y.

The only way for the content of the orders to be directly relevant is if we were prosecuting agents for *refusing* to torture when ordered to do so, i.e. for insubordination, where the conflict between orders and actions is a direct element of the offense. But “my orders were illegal” is, and ought to be, a defense to insubordination, so no such prosecutions are being contemplated (AFAIK).

The underlying problem is what we, the sovereign people, want our agents to do when they are ordered to do something illegal. Most people on this site want them to obey the law and reject the orders (and possibly blow the whistle), but cultural conservatives apparently really do want them to obey the orders and reject the law. That’s the root of the debate.

37

bianca steele 09.01.09 at 3:42 pm

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.

38

Salient 09.01.09 at 4:32 pm

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

!

… ?!

If true, this would have merit in cases where, for example, your driving instructor says, “It’s perfectly okay to go 5 mph over the speed limit” and you are later stopped for having sped 5 mph over the speed limit. IIRC the driving instructor’s comment is not an acceptable defense/excuse in the law’s eyes, and I’m pretty sure the Geneva conventions operate according to the same principle of culpability.

Also. If people can’t figure out that “torture this guy for fake information” is a Wrong Thing independent of what they are told… (sigh…)

… then it seems pretty important to send a strong message, “You should think about the legality of instructions you receive, because you will be held responsible for obeying the law independent of whatever you are told.”

39

Chris 09.01.09 at 7:30 pm

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.

40

bianca steele 09.01.09 at 8:44 pm

Chris, a few quick points (I’m not a lawyer and you raise too many points for me to address any of them really adequately–I couldn’t pass a first-year law school exam but hope this doesn’t annoy you):

–I was using “mitigating circumstances” in a general, not a technical, sense, and I meant to include, for example, “defenses” such as those others have mentioned on this thread. So, I’m not sure your comment that “mitigating circumstances are for the judge to decide after all the facts have been brought before him” really applies to what I said.

–I thought the discovery process began prior to prosecution. Maybe I am thinking of the wrong word? I’d think it has to be the case that a prosecutor can’t even begin to think of bringing a case until he or she has at least a little information already–so where does this information come from?

41

David 09.01.09 at 11:59 pm

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

Pete 09.02.09 at 10:14 am

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

I don’t think it’s that simple at all. For one, the whole text of the law is vast and unsearchable – it may not be possible for someone to read all of US legislation in their lifetime, let alone before taking action. Secondly, it requires interpretation by specially trained people.

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.

The people who got the advice and failed to follow it should clearly be prosecuted – everyone can agree on that. I think the people who gave the advice should be charged with everything resulting from their advice.

43

Chris 09.02.09 at 3:28 pm

#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.

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bianca steele 09.02.09 at 8:44 pm

It seems we’re holding lawyers to a very high standard. They should investigate everybody, and even prosecute everybody. The excuse that they don’t think they could get a conviction is not very satisfactory–they don’t know until they try. Neither is the excuse that they don’t have time–there is always time if you really want to do it. Doing absolutely everything possible to push every single case to the sentencing stage is the only satisfactory way to proceed, from a moral point of view. The fact that their outcomes are visible and clear cut, so they get more flak when they don’t succeed than others do, doesn’t mean they are any more justified than anyone else in prioritizing some things as “3”s and letting them fall off the bottom of the list, much less validating general rules about low priorities and such by institutionalizing them.

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