Obama Law

Against Big Investigations
An email conversation about the news of the day.
Dec. 9 2008 11:49 AM

Obama Law

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Emily, you asked about the new DoJ investigating the old one. Obviously, the new DoJ needs to finish up all pending investigations, including the criminal investigation into destruction of the videos of CIA interrogations, the investigation of the Office of Professional Responsibility into the genesis of the deservedly criticized Yoo-Bybee "torture memo" and other Office of Legal Counsel memos. (Here's a link to Slate's interactive guide to these and other allegations.) And obviously the new DoJ should look into any specific, credible allegations of criminality that come to its attention.

But it would be a terrible mistake, in my view, to launch anything like the big, public criminal investigation that almost 60 House liberals, human rights groups, and others are seeking into allegations that John Yoo, Donald Rumsfeld, Dick Cheney, Colin Powell, Condi Rice, President Bush, and other top officials reportedly approved harsh interrogation methods including water-boarding (subject to limitations that have not yet been publicly identified). I suspect, without benefit of inside information, that Obama attorney general pick Eric Holder and other top officials of the incoming administration would agree with me.

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First, such investigations and prosecutions would tear apart the country and blow up Obama's hopes of lifting us out of our multiple crises. Note that Obama himself cited in April the need to distinguish between "really dumb policies and policies that rise to the level of criminal activity." He also said, "I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we've got too many problems to solve."

Second, while I deplore profligate use of the brutal interrogation methods that were approved at high levels and the rhetorical encouragement of even worse low-level abuses, and while some detainees were certainly tortured in the usual meaning of that word, there is no credible evidence that any high-level official acted with criminal intent to violate either the narrowly drafted anti-torture law or the War Crimes Act. All of them were relying, in good faith, on advice of government lawyers, especially the Justice Department's Office of Legal Counsel. It would be unconscionable and unlawful—under a specific provision of the Detainee Treatment Act of 2005 as well as general legal principles—for the same Justice Department that advised that water-boarding and other brutal methods were legal to turn around and prosecute people for acting on that advice.

It's true that reliance on advice of counsel is no defense if the client is acting in bad faith, with reason to know that the advice is bogus. But that is not the case here. Indeed, all of the methods approved at high levels have been found lawful not only by the gonzo executive-imperialist Yoo-Bybee "torture memo," but also by several respected mainstream lawyers who carefully analyzed the issues after the Yoo-Bybee memo had been repudiated.

As to water-boarding, while a strong case can be made that it violates the anti-torture statute, a strong case can also be made that if carefully controlled, it does not necessarily violate that statute. I will elaborate later, if anyone would like.

Water-boarding and other interrogation methods approved at high levels did violate the ban against "humiliating and degrading treatment" in Common Article 3 of the Geneva Conventions, which is enforced by the War Crimes Act. But those violations cannot be prosecuted in American courts unless the officials acted with criminal intent. They did not. Rather, they acted in reliance on another OLC memo, which advised that Common Article 3 did not protect stateless terrorists like those from such groups as al-Qaida. Although a bare majority of the Supreme Court held otherwise in the June 2006 Hamdan decision, there were very respectable legal arguments for the OLC position. I thought it was correct. In any event, Congress explicitly amended the War Crimes Act later in 2006 to effectively immunize from prosecution any officials who violated Common Article 3.

In short, as Talleyrand (or some other old French guy) once said: "It was worse than a crime. It was a blunder."

Best,

Stuart

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