Torture investigations

Dahlia Lithwick, about the best person writing on legal/Constitutional issues for a lay audience, has a nice take on the Justice Department's proposed very limited investigations of only those who did the actually torturing, rather than those who crafted the policy.  After acknowledging Holder's politically difficult spot, we get to the key insights.  The highlights:

Holder starts from the dangerous notion that the baseline for Durham's
investigation should be the legal rules (spun from bad data and random
precedent) set out in the Office of Legal Counsel torture memos. To
suggest, as Holder did yesterday, that he would immunize from
prosecution "anyone who acted in good faith and within the scope of the
legal guidance given by the Office of Legal Counsel regarding the
interrogation of detainees" is to suggest that the low-level CIA
operatives and contractors who acted badly on the ground are legally
culpable while those who gave bad legal guidance are not. In other
words, we are now protecting the good-faith torturers.

That isn't just wrong, it's outrageous. It ratifies the most toxic
aspect of the whole legal war on terror: that anything becomes
permissible if it's served up with a side of memo. Paper your
misconduct with footnotes and justifications—even after the fact—and
you can do as you please. Prosecution of those who strayed beyond the
new rules, without considering the culpability of those who strayed in
creating the new rules, would mean that in America, a law degree
amounts to a defense.
[emphasis mine] Rep Jerry Nadler, D-N.Y., put it this way earlier
this month when he warned that it makes no sense to prosecute the guy
who used 8 ounces of water to water-board but not the lawyer who said
it was OK to water-board someone with 3 ounces of water. We must either
look into both sides of the post-9/11 legal breakdown or neither. The
alternative is the same kind of scapegoating that occurred after Abu

Sadly, I think that in a situation like this, a law degree does amount to a defense.  Ultimately, though, it is just another shining example of two standards of justice in this country.  One for the wealthy and educated, another for everybody else.  Unfortunately, there's little doubt on whether the law-degreed political appointee or the agent working on the ground is going to get more consideration from prosecutors and politicians.

About Steve Greene
Professor of Political Science at NC State

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