Sunday, April 19, 2009

Kill the Lawyers, redux

The Arizona Daily Star ran an Associated Press update today quoting White House chief of staff Rahm Emanuel as saying the administration was not intending to prosecute any Bush administration officials for the acts of torture they officially sanctioned.

Not surprisingly, this position was happily accepted by Republicans. Quoting the article:

GOP Sen. Lindsey Graham of South Carolina, a member of the Senate Armed Services Committee, said the idea of “criminalizing legal advice after one administration is out of the office is a very bad precedent. ... I think it would be disaster to go back and try to prosecute a lawyer for giving legal advice that you disagreed with to a former president.”

The problem with this is it creates a backdoor by which the administrative branch can claim unlimited power. Want to spy on any US citizen without a warrant? Simply have a friendly OLC lawyer devise some half-assed argument supporting it. Want to drop a nuke on Canada because you can't stand the way they keeping adding 'eh?' to the end of every sentence? Call in the OLC! Nothing is so far out there we can't find some flimsy justification for it.

So what if, after the fact, the legal reasoning is found to be childish, amateurish, completely lacking of any professional standard - you got done what you wanted to get done. It's time to focus on the future, not look backwards to the past.

Supposedly, lawyers have professional standards, and if those standards are not met, or it is, at best, questionable those standards are met, then it is entrely appropriate to prosecute the lawyers who give such poor advice. The fact we are talking about lawyers making legal decisions which impact policy decisions for our entire nation makes this more imperative, not less.

If no other Bush administration official is prosecuted for these atrocities, at an absolute minimum the lawyers who provided the flimsy cover of legality which Bush, Cheney et. al. used as justification for their heinous acts must be. Otherwise, we are can no longer claim to be a nation of laws, only a nation of legal justifications.


x4mr said...

I would have commented sooner, but I've been struggling with this.

The theory plays out as you suggest and I don't disagree. I choke on the implementation where rubber meets road and how it pans out with respect to the implications.

Every concern you express is solid, but how do we go after these guys without emasculating future requests for legal opinion? I'm not saying there isn't a way. I am saying that this has do be done with savvy.

The conversation has to be crafted in a way that distinguishes the true nature of the crimes committed without opening a pandora's box. Again, I get what you're saying, but how do we steer clear of "Write a legal opinion, but if later sentiments disagree, you could go to prison."?

Sirocco said...

But how is this different now? If, for example, a lawyer provides truly poor representation in a case (or, at least, if he consistently does so), he can be disbarred.

Take it a step further - assume a case where a lawyer not only provides poor advice, but provides poor advice designed to justify, say, a murder. Doesn't he become an accessory to the crime then, and thus punishable?

If this causes the OLC to take more conservative positions which tend to be more restrictive of Presidential power, I see that as a good thing.

x4mr said...


I am sure you realize the odds are good that this is going to become a real mess, and I think that is why Obama would prefer to let it go.

I think that option is toast at this point.

Sirocco said...

I totally understand why, in terms of what Obama hopes to achieve, he would like to let it go. It's going to be a firestorm, a huge distraction from what he wants to accomplish with his agenda.

Of course, one shouldn't overlook torture on the grounds it's more convenient to simply let it go.

Don't get me wrong, in terms of what I think would help the country more in the long term, I would take a better health-care system and more environmental protection rather than prosecutions for torture ... but there is not only a legal, but a moral obligation to prosecute, no matter how 'inconvenient' it might be.

You understand that of course ... but just for anyone else reading this little give-and-take.