Why I’m Conflicted on Torture Prosecutions
Transplanted Lawyer sums up – albeit in a lot of words – exactly why prosecutions for the torture memos are not such a cut and dry issue even if you find them to be a deeply black mark on the rule of law and indeed the legal profession. It’s a really long post [Ed. – ok, well, not by this site’s standards!], but I found myself nodding in agreement with every word. He also mentions, in passing, the doctrine of qualified immunity, and why it doesn’t seem appropriate to apply with respect to the people who drafted the memos. Conversely, I should add, it is exactly the appropriate doctrine to apply with respect to the individual CIA officers who carried out the behavior authorized by the memos. TL explains well why being conflicted over prosecuting the memo authors does not equate to an endorsement of their actions or conclusions.
Again, it’s important to “leave room to be wrong,” even at this level. The question is, when do things get to be so wrong that someone should have pulled the plug? That, in my mind, is a very difficult question to answer. That the answer was ultimatley wrong is not a hard call for me. We aren’t talking about “ticking time bombs,” and we aren’t talking about the panicked days of early October 2001. But it’s easy to see how a bunch of these lawyers — political appointees and those who worked very closely with them — felt some level of groupthink and political polarization. And in that circumstance, we want to have some way for someone to step out of the box and blow the whistle. But it takes moral courage and self-awareness to do that, and these are, unfortunately, rare characteristics and a lot of political pressure can squeeze large measures of those traits out of people who might otherwise have them. So, we had no profiles in courage in the Justice Department. It doesn’t seem quite right to prosecute someone for not having remarkable degrees of moral courage. But at the same time, it doesn’t seem right to not prosecute someone for setting in motion a chain of events that led to torture.
Please do take a few minutes to read the whole thing, especially if you’re a non-lawyer. In the comments, Cascadian notes:
I appreciate the concern for prosecuting officials for what they do in the line of duty. However, torture and domestic unwarranted wire taps are clearly on a different level. The ultimate danger is that our inability to prosecute these crimes is evidence that our government is unaccountable and hence, illegitimate. If we allow these types of events to occur without punishment, it is we the people who are guilty.
That’s why I’m conflicted here. I don’t think it’s cut and dry that there shouldn’t be prosecutions, either. That said, I do think that prosecuting the CIA agents who actually did the waterboarding, etc. would be a clear case of qualified immunity, at least in the context of a civil lawsuit; if there couldn’t be civil liability, it’s hard to see how there could be criminal liability. As for the lawyers, it’s a much tougher issue for me. They did something – ignoring that their client is the Constitution and the duly enacted laws of the United States and acting as if their client was the CIA – that is a huge ethical no-no.
But it’s an ethical no-no that happens every day; are we going to criminally charge every prosecutor who forgets that his job is to ensure justice is done, not to obtain convictions? And how do you tell when that line between simply being wrong and being almost willfully wrong has been crossed? Since it happens every day, isn’t the prosecutor who proceeds with charges – and maybe even obtains a conviction on charges – that he should know are false far more of a threat to government accountability and legitimacy? Isn’t making an innocent person spend months or years in prison because of an overzealous prosecutor as problematic as torturing two indubitably Very Bad People?
I honestly don’t know the answer to these questions. It’s even possible that we should start looking to regularly prosecute particularly overzealous prosecutors, much as I think that goes too far.
On the other hand, maybe the torture memos are more condemnable and dangerous than an obviously overzealous prosecution. There are no appeals from an OLC legal opinion. And OLC lawyers are supposed to act more like impartial judges than adversarial litigators.
In the end, I’m just not sure where I come down, particularly with respect to the OLC attorneys.
In the comments below, Nadezhda, whose own site is here and who is far more experienced than I, has me half-convinced that maybe I shouldn’t be so conflicted with this:
I should add on the “rogue prosecutor” problem, that it is a real problem which undermines the integrity of our judicial system. But it’s one that should be handled through more resources devoted by the courts, the Attorneys General and the legal profession — with real professional penalties.
I can’t tell you how pleased I was that the prosecutors in the Stevens trial are being called to account. I expect he was indeed guilty of at least some of the charges, but the DoJ behavior was an out-and-out travesty. Same goes for folks like the Duke lacrosse prosecutor — shame him publicly and drum him out of the profession. The big problem right now is that it’s only in high-profile cases like Stevens and the Duke fiasco that attention gets paid to prosecutorial shennaigans. We need judges to be more willing to call prosecutors on their sins, as well as procedures for whistle-blowers and victims to get some meaningful redress. But using criminal courts against rogue prosecutors isn’t the way to clean up the system.
I don’t think the crimes of the lawyers advising on the acceptability of torture are at all comensurate with rogue prosecutors, though as you suggest, the actual long-term damage inflicted on individual victims by rogue prosecutors may be greater than the torture authorized by the OLC lawyers. That’s because I view torture — and the related crimes of “disappearing” prisoners — as something far more fundamental to our constitutional system, not simply the relative health of our criminal justice system.
Violations of habeas corpus, special secret courts, and torture are a trio of practices that have historically represented a bright line between absolutist/totalitarian regimes and regimes where people govern themselves through accountable leaders. Those practices have been made absolute taboos because of their practical impact on the nature of a political system. They are inherently terribly corrupting of those who administer a system which uses those practices — they require secrecy, which leads to more abuses to cover or justify the practices, etc etc., and they are always justfied by people who are honestly convinced that what they’re doing is essential to protect society, but are equally honestly convinced that they know better than their fellow citizens. We have made those practices taboos also due to their symbolic importance — they have historically represented the ultimate sign and test of whether a people is capable of self-government or instead would give in to those who would promise safety — provided they are given unaccountable powers.
So for me, if “the people” or “the constitution” are what are “sovereign” in our system, torture is a crime we might equate with lèse majesté, equivalent to and as serious as treason. The lawyers who conspired to facilitate torture were commiting a crime not only against the victims of torture (for whom, if they are Al Qaeda members, I haven’t an ounce of sympathy). They commited a crime against their country, our society, and me as a citizen and member of this society. I really do take it all very personally.