Free Markets, Free People
Patterico WLS, posting at Petterico’s “Jury” blog points out that, despite all the calls for prosecuting “former Bush officials” over the torture memos and the actions taken under their aegis, he wonders, as an actual prosecutor, who would be charged with a crime, and what, exactly, the crime would be.
In mulling over the news of the past few days, I’m curious as to what the critics of the Bush Administration see as plausible criminal charges against the officials who were responsible for the drafting/authorizaiton [sic] of the “Torture” memos.
It would be one thing to actually prosecute the CIA officials involved in carrying out the interrogations…[b]ut they would likely have the time-honored defense of “advice of counsel” which works to negate the mens rea (”guilty mind) necessary to establish knowing criminal conduct. When the top law enforcement officials of the US government tell another component of the US government that the conduct they are proposing to carry out on behalf of the government is not prohibited by statute, it’s exceedingly difficult — if not impossible — to mount a successful prosecution against any government official who acted in accordance with the advice…
Prosecuting the officials who offered the advice is a different question. But what would be the charge? It can’t be “Torture” under the statute — they didn’t do anything. They simply responded in their official capacity to a question raised by another governmental entity… Why is the ANALYSIS of the specific technique described in the memos — concluding it would not fall within Sec. 2340 — wrong?
Fair questions indeed.
The officials who wrote the memos were acting as lawyers providing legal advice over the meaning of a statute. Perhaps that advice was wrong. But is providing an erroneous legal opinion a crime? If so, what, exactly, would the crime be? You would have to prove that the advice was completely and knowingly concocted from whole cloth and/or that the concocted legal advice was part of conspiracy to commit torture. In that case, you’d have to find evidence of specific collusion between the CIA and DOJ to knowingly concoct spurious justifications.
Absent such evidence, all you have is lawyers providing legal advice that the current administration doesn’t like. In that case, I don’t see what the prosecutable offense is.
Taking it further, the CIA officials who actually conducted the torture have a very good defense, namely, that the formal legal advice they received from the government’s top lawyers at the DOJ was that the specific techniques they used fell outside the meaning of §2340. In that case, they cannot have known they were committing a crime, but rather, they believed they were, on the advice of counsel, acting entirely within the law. So, unless there’s evidence that the interrogators went off half-cocked and began using non-approved techniques in the questioning, it’s difficult to see what the crime would be on the part of the interrogators themselves.
With the above in mind, it’s difficult to construct any other scenarios in which any of these of officials are prosecuted without it becoming, in effect, a criminal prosecution for partisan policy differences.
Whatever else that might be, it is not the Rule of Law as it is commonly understood.