Join me for a moment in the realm of speculation. What does Eric Holder's Justice Department really think about the prosecution of government officials who broke the law?
Part of me thinks that this
is all an exercise of sorts; if the Justice Department's Office of Professional Review concludes that former OLC deputy John Yoo committed
professional misconduct, then the OLC memos themselves are suspect. Holder's statement is mute on this subject. If
a U.S. Attorney decides to look at the ICRC report, looks at the Bybee and Bradbury
"technique" memos, figures out that CIA officers routinely violated
these internal rules and goes to the head of the criminal dvision and
makes a case, would Holder decide to prosecute? Is Obama's definition of good faith -- as in, if a CIA interrogator intends to follow the advice, you're fine -- dis positive?
On the surface, the statement today looks like a big ol' grant of immunity -- or a concession -- or a deliberate attempt to boost morale at the CIA. It might be a deflection, designed to give Obama and Holder some political cover for prosecutions down the road. Or, it could be the pretext for a tacit administration sanction of a Truth Commission. (Sheldon Whitehouse, among others, reiterated his call for one today, as did Pat Leahy.)
There are plenty of CIA officers who followed the rules and shouldn't be proscuted. They're the ones who are a ltitle relieved today...although they might have to explain some things to their priests and their families.
But there might well be officers and government officials who (probably) willfully ignored what the OLC guidlines say. They intended to so -- and intent is the key here.
I know that Obama personally opposes prosecution. I also know that he knows that Holder gets to make the call; Holder's words today could be boilerplate, or they could be the result of an administration that's thinking about the long-term.
I believe that CIA agents will surely go free. However, the civilians who write these Memos are in real trouble. John Yoo, Bybee and Bradbury can forget their bar membership and will surely end up in prison.
Not at all clear what's going on -- as it should be. In this situation, Obama is the cop, not the judge, jury, or executioner.
From what I/we can see -- and it's not all that much -- he's doing a pretty good job in this role: keeping his fingerprints off the evidence, trying not to scare potential informants too much.
... Oh.. right... in this age of 24, we may have forgotten -- the cop's job is to bring the accused -- and a sheaf of valid evidence -- before the judge unharmed.... but yes, that's a minor point... only fundamental to our legal system and our republic.
Low-level officials in Germany were tried and convicted in the various trials following WWII, and they were carrying out orders. Certainly the SERE experts (who both suggested and executed the techniques in addition to providing the factual justification to qualify them as "not torture" to the extent it satisfied the White House) detailed in these memos are more culpable than many convicted after WWII, although their crimes are not as severe.
Marc,
Is this Obama slapping Cheney down?
I agree with Stan. They're giving the CIA agents a pass so they can go further up the food chain.
Marc Ambinder,
It is at least short sighted. Obama talks "looking forward" which means nothing if one is not looking past their nose.
The torture folks can hide out till Obama is gone then come back and do it again not fearing prosecution.
We must let the world know and the torture freaks know we Americans do not tolerate this behavior.
"But there might well be officers and government officials who (probably) willfully ignored what the OLC guidlines say. They intended to so -- and intent is the key here."
No, intent is not the key. If you always carefully do your best to follow orders, but you're ordered to torture, you're still breaking the law. "I was only following orders" hasn't flow since Nuremberg.
Can someone tell me who of any power has officially said this constituted torture?
A range. We kind of backed ourselves into a humanitarian's corner by signing the Geneva Conventions and granting legitimacy to the ICRC.
Then there is the troubling issue of our sentences at Nuremberg.
So... nothing much more than legal precedent. But it's only wooly liberals who follow legal precedent.