In an interview with the Washington Post this weekend Rahm Emmanuel indicated that the administration opposes prosecuting the DOJ authors of what we now call collectively "the torture memos",
The Obama administration opposes any effort to prosecute those in the Justice Department who drafted legal memos authorizing harsh interrogations at secret CIA prisons, White House chief of staff Rahm Emanuel said yesterday...
"It's not a time to use our energy and our time in looking back" out of "any sense of anger and retribution,"
Speaking as an Obama supporter since 2003, and a lawyer, I say he could not be more wrong. The lawyers who authored these memos MUST be prosecuted to the fulls extent of the law and disbarred as attorneys. I say this not out of "anger" (however righteous) or thirst for personal "retribution" as Emmanuel would have it, but because to have any assurance that this will never happen again, the law MUST be vindicated, and as those most responsible for this tragedy, the lawyers need to face the consequences of their actions:
Now as a Lawyer, let me make something perfectly clear: I am not calling for the heads of Bradbury, Bybee, Yoo, et al. simply because they wrote something I profoundly disagree on both moral and legal grounds. An Attorney's "Right of Conscience" to forthrightly advise their clients on the law, and take even extremely unpopular positions and cases is an important cornerstone of our legal system.
Personally, in my professional career I have proudly helped argue for a woman's right to custody of a child, even after two others died in her care; and for the freedom of a man who shot down a police officer in cold blood, with the officer's own gun. Repugnant as other people may have found their actions, they had a right to as vigorous a good faith defense as I could possibly provide under the law. To do anything less for any client, is to put our entire legal system in jeopardy.
However, this is not what the authors of these memos did. This was not a good faith attempt to interpret the law; but an extra-judicial attempt to re-write the laws into a form more acceptable to the administration. This is the crux of the charge against these men. While a lawyer's code of ethics requires them to give their clients vigorous and wholehearted service, without regard to their personal feelings, it also draws a very clear line where that service must end. Every code of legal ethics prohibit lawyers from giving advice that will be used to further a criminal conspiracy or allow the client to . A review of the recently and previously released memos makes it explicitly clear that these memos constitute the latter, not the former.
In these memos, they were asked to create binding legal opinions advising the military and the CIA about the state of the law on the subject of what could and could not be done to the people we captured and interrogated. In essence, they were asked to define what was and was not torture under the numerous US laws, treaties and regulations, prohibiting the practice. However, rather than try to offer good faith legal advice on the state of the law, however, these memos were nothing more than an attempt to create a legal fig leaf to cover blatantly illegal activity.
Even the most cursory review of these memos. especially to a trained legal eye reveals them to be laughable as attempts to seriously interpret the anti-torture statues. As I dissected at some length about 5 years ago The first Bybee memo, for instance, uses sources and arguments that wouldn't have been acceptable in a first-year Legal Writing program in law school, much less, as an official legal opinion of the White House Counsel's office.
For example, when a term that is perfectly well defined in a statute won't support his argument, simply re-defined it by citing a Websters dictionary definition instead, a legal no-no. When even Websters wouldn't support his strange theses; he "dictionary shopped" citing the 1995 edition for one word, the 1978 edition for a second and the oh-so-current 1938 edition for a third.
It's also clear that William Haynes, then of the Pentagon's Office of Legal Counsel, similarly rejected the considered legal advice of the chief JAG officer of every branch of the military service who unanimously objected to the legality of proposed "harsh interrogation " (torture) techniques. In fact, when faced with such considered and overwhelming legal consensus it appears Haynes simply called his friend Jay Bybee and get the White House to issue a memo contradicting the JAG chiefs
And that memo was, shall we say?, about on par with previous White House Counsel efforts:
The OLC memo was solicited as a trump card to override objections within the military, and to silence objections based on law. Indeed, the memo was subsequently used in the aborted Pentagon Working Group Report, whose members were told they were bound to accept the reasoning and opinions expressed in it. In fact, most of the Working Group found the memo so facially implausible and foolish in its reasoning that they refused.
So the memos were heavily biased, I can hear you say, So what? Don't lawyers do that all the time? Twist the law the way their bosses want them to? The answer is that popular perception aside, lawyers, at least good ones, and ethical ones do not do that. Especially not lawyers who hold positions of public rust and can make law and policy for the entire US. At least they haven't until now; and that is why prosecution, and/or public rebuke, and professional dishonor for the writers of these memo writers is so important.
You see the most extraordinary thing about these memos is not what they say, or how poorly they were written, but that they exist at all. Consider that even an administration riding high in the public opinion polls (90%+ after 9/11) and given near carte-blanche by Congress, nevertheless feared breaking the law and sought out it lawyers before implementing this program. Consider that the men willing to carry out this torture, men who were willing to violate 200 years of American traditions, our culture of human rights, and all accepted Judeo-Christian morals, still feared violating the law and asked for specific legal permission for the minutiae of every planned torture technique.
That's the power the law has; people who are quite willing to become moral monsters still fear becoming criminals and facing the full sanction of the law. This is why there can be some argument of amnesty, however viscerally distasteful, for the men who actually tortured the prisoners. They were acting under orders from their commanders and given reassurances from these lawyers that everything they were doing was perfectly legal and proper. However this is precisely why there can be no mercy or amnesty for these lawyers who knew better, knew what they were authorizing was illegal, and knew what would happen to the detainees as a result of their actions.
I don't want "vengeance" as Rahm Emmanuel supposes, I want something far simpler: Justice Oliver Wendell Holmes once famous said that "The Law is no more than what a bad man would say it is." In other words strip away all moral argument from the law and recognize that only those laws that a bad man fears to break are really laws at all. Now consider these lawyers: They men broke their oaths as lawyers, and civil servants to uphold the law and the Constitution. They conspired to violate long established US law And as a direct consequence of those violations hundreds of men suffered unspeakable pain and torment, and the US lost almost all of it moral authority on Human and Civil rights in the world.
If they are allowed to go free with no consequences, what would a "Bad Man" say our laws really are; and what would stop a future "Bad Man" from doing it again?