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Tuesday, April 21, 2009

Maybe Jay Bybee and Jamie Gorelick Should Be In The Dock Together

I don't think Jay Bybee (or Alberto Gonzales or John Yoo or Stephen Bradbury) are criminals. At worst, they expressed legal opinions on interrogation of terrorism suspects which a court may someday declare to be wrong. Bybee's being wrong, if indeed he was, contributed to the use of waterboarding against three top-level al-Qaeda terrorists, and appears to have saved many (perhaps hundreds) of lives.

I don't believe Jamie Gorelick is a criminal. At worst, she expressed a legal opinion when she worked in the Justice Department regarding the need for law enforcement agencies and intelligence agencies to maintain a wall preventing the sharing of information, which opinion turned out to be wrong. [added: Gorelick's advice was to put in place guidelines to prevent information sharing which "go beyond what is legally required."] "Gorelick's being wrong, if indeed she was, contributed to the inability of the United States to detect and stop the 9/11 attacks which resulted in the deaths of thousands.

Please don't tell me that there was a difference in intent of the legal opinions. Bybee, it is clear from his memo, carefully reviewed the law and the facts. Indeed, it is his intensive review of the facts which has led some to argue that his memo constituted the banality of evil. This is what it has come to; a carefully reasoned and factually grounded legal opinion becomes criminal because people who appear to be willing to sacrifice our cities, if necessary to prevent waterboarding, now have the ability to sway the levers of government power.

It makes no logical difference that Bybee could have foreseen that the result of his incorrect legal advice would be the commission of a crime. Gorelick could have foreseen that the consequences of her incorrect legal advice would permit the commission of a crime (just read her memo linked above, and you will see that the warning signs of pending terrorist plots were clear). [added: If Bybee could be charged with conspiracy to violate the statute, then Gorelick could be charged with obstruction of justice.] While there may be differing levels of culpability, both results were foreseeable.

Of course, neither should in fact be charged with a crime merely for expressing a legal opinion:
Though the president has said that CIA agents will not be charged for following legal guidelines for interrogations, some Democrats have pushed him to support prosecution of the lawyers who drafted the legal ground for such interrogations. Obama said Tuesday that he will defer to Holder on those potential charges.

But if Holder goes down that road, it will be unprecedented, legal analysts said.

"It would really be a very, very difficult case to make," said Bruce Fein, a constitutional lawyer and former official in the Justice Department's Office of Legal Policy.

Not impossible, though. Fein said the prosecutor in the case would have to prove that the Bush attorneys essentially fabricated the legal justification in their memos.

"You would have to show that the legal arguments were just totally concocted," he said. "It's a very, very narrow path."

I realize that consistency is a rare commodity. If we are to be consistent as to criminal sanctions for legal opinions which turn out to be wrong, then Gorelick should be in the dock next to Bybee. But that would mean we were consistently wrong.

[h/t to Doug Ross for the Gorelick legal opinion link, and a reader for the quoted article link]

UPDATE: Sister Toldjah: CONFIRMED: Interrogation techniques DID aid in our fight against Al Qaeda

UPDATE No. 2: In anticipation of the inevitable invocation of the Nuremberg trial of Nazi "lawyers" (actually, judges and prosecutors) please read the full breadth of those cases (here and here). There were no prosecutions because a lawyer tried to apply a vague law to a stipulated set of facts. Just proves Godwin's law ("as an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one") is alive and well when it comes to the interrogation memos. Added: I knew it. Here we go: The Torture Memos: Berlin, 1937 Version. What fools. Three cases of waterboarding to save lives apparently compares to the use of the Nazi judiciary to help perpetrate and justify the killing of millions.

UPDATE No. 3: Did a HuffPo blogger mimic my post Which City Would You Sacrifice? Or do brilliant minds think alike? You be the judge.

UPDATE No. 4: A reader has called my attention to this post regarding Eric Holder's failure to take action on the information sharing "wall."

UPDATE No. 5: This from someone who opposes the use of waterboarding even knowing what we know now:

But what if it [an attack on L.A.] hadn't been foiled? Suppose the CIA had been denied permission to use brutal interrogation tactics, and Al Qaeda had consequently gone on to murder thousands of additional victims in California. What kind of conversation would we be having once it became known that the refusal to subject KSM to waterboarding had come at so steep a price? How many of those now blasting the Bush administration for allowing torture would be blasting it instead for not preventing a second bloodbath?

None of this is meant as a defense of torture, which I oppose as adamantly as ever. But even those of us who were against the Bush interrogation policy should be able to acknowledge the good faith of those who disagreed and the exigency in which they
found themselves. To say nothing of the lives their decisions may have saved.

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  1. This is what happens when you make the laws as you go or when you have 1.1 million lawyers who are fighting for a piece of the cake.

    Are there any lawyers out there who would sue Alberto Gonzales for $1 Gazillion on behalf of Muqtada al-Sadr for causing emotional distress ? Than appealing, taking the case to a higher court ? (all on taxpayer dime mind you)

    This country seriously needs a reform of this backwards law enforcement.

    Say 1960, it was OK for your father to give you a beating when you broke the neighbor's window, 1990 congress makes it illegal, should you be able to sue your father for giving you a beating in 1960 when it was completely OK ?

  2. If you criminalize "being wrong" in legal opinions, what would this do for every 5-4 split in the SCOTUS? What about the underlying split in appeals courts -- would the 9th circuit be fugitives?

  3. re: what they are saying: you must be very proud.