So...I guess you can't charge...anyone?

[jonsonite]

Here's a Wall Street Journal article about the CIA's handling of terrorist interrogations. Henniger seems to think that it's not legitimate to try CIA agents because the agency "received 'multiple written assurances its methods were lawful.'"

That's fair. If the government's lawyers tell you that something is legal, you shouldn't be on the hook for

Comments

[troglodyteking]

I'm inclined to agree that there is a good case for not prosecuting the interrogators. But I don't think there's much justification for not prosecuting, or somehow holding accountable, the lawyers.

If they're prosecuted, the lawyers won't then have a dissincentive to provide judgements on tough issues . . . they'll have an incentive to be cautious about tough issues. Which I think is great.

I don't think the situation of the interrogators and lawyers are the same at all. The interrogators did their job as they understood that they were allowed to do - because ultimately the lawyers said they could. And that's because the lawyer's failed in their job. The interrogator follows orders and interrogates people. Lawyers don't follow orders (except in so far as they're ordered, "Investigate this, figure out what's legal."), they make arguments and judge things - they can't fall back on the obedience to a higher authority excuse. If they say something is okay which is later deemed, without any new legislation or judicial insight, to be out-of-bounds, they failed in their job and should be held accountable. That's what I think.

If an interrogator tortures someone because he fails to uphold the restrictions he's official, by policy, meant to uphold, then he screwed up and should be held accountable. A lawyer's job is different - it's not to enact policy, its to figure out what policy is right. It's a more complicated job, and a more dangerous one (in a sense); but then, they get more money and prestige for it. If the lawyer caused someone to be tortured through failing to uphold the rigor of his profession and authorizing bad interrogation policy, he screwed up and should be held accountable.

Our legal system is based, to a large extent, on discretion. If you're really sure someone did a crime, but can't prove it, they walk. Because we don't want to falsely imprison someone, and we don't want to give prosecutors and judges too much power to intimidate and abuse people. The same is true here, I feel - if, as a lawyer, you're not absolutely sure a policy is okay, you shouldn't authorize it.

Or, to take another tact: The interrogators can say, "I was just following orders." (Where 'orders' is understood as 'our policy, as influenced by what the lawyers said we could do'.) Can the lawyers say that? "I was just following orders."? Whose? And even if they argue that the administration, or the justice department, or whoever told them to authorize these policies . . . it's not the same, because they're job is to say whether they're legal or right. So either they've wilfully failed in their job, or they're incompetent in not realizing that, in fact, what they were authorizing was illegal.

[ursako]

'Following orders' isn't actually a defense, either at international or domestic criminal law. There's something similar called qualified immunity in civil law, so if a detainee sues, that's probably what an interrogator would argue.
But if the administration decided to prosecute under the domestic criminal torture statute, interrogators might not have much to fall back on. Lucky for them the administration won't prosecute.