Keep politics out of the law when judging torture

[babylonsister]

http://shadow.foreignpolicy.com/posts/2009/04/20/determining_bush_era_misconduct_is_a_question_of_law_not_politics

Keep politics out of the law when judging torture
Mon, 04/20/2009 - 11:19am

By Phil Zelikow

I will have more to say soon about interrogation policies in the Bush administration and the recently renewed debate over them, but for now I'll just say this: I am not eager to see any government officials prosecuted for crimes because of their zeal to protect their country. But crimes committed for worthy motives are still crimes, and we have institutions to sort this out.

So has anyone beside me found it troubling that President Obama is making announcements on who should be prosecuted for possible crimes? Whatever one's view of the matter, didn't the administration ardently announce its dedication to depoliticizing the Department of Justice? So why is it proper for the president to tell Attorney General Eric Holder what he should conclude?

There seem to be four possibilities here:

1. No unlawful conduct occurred. That judgment should, at least initially, be made by the Attorney General, free from political influence.

2. Unlawful conduct occurred, but the suspects have a credible defense -- that before undertaking their unlawful conduct, they relied in good faith on authoritative (though in retrospect, mistaken) legal opinions that the planned conduct would be lawful, and these opinions were also issued in good faith. Again, that judgment should be made, at least initially, by the attorney general, free from political influence.

3. Unlawful conduct occurred, and the legal opinions are not an adequate defense. Federal prosecutors, regular or specially appointed, then go to work. Again, the prosecutorial judgments should be free from inappropriate political influence.

4. Unlawful conduct occurred, and the legal opinions might not be an adequate defense. But President Obama decides to issue a blanket pardon for any possible criminal activity.

Or you have option #5, in which the president does not exercise his pardon power but instead, in effect, tells his attorney general what conclusions he should reach about whether federal officials broke the law.

Can you imagine what folks would say if a Republican president exercised option #5? I wish President Obama would just play this straight. He also does no favor to suspects if he politicizes the question of their innocence.


Phil Zelikow is a former top aide to ex-Secretary of State Condoleezza Rice and staff director of the 9/11 Commission.

[babylonsister]

1. It seems AG Holder thinks so, too.

;)

[pat_k]

2. Re: Item 2. . .

Whether or not participants in the war crimes "relied in good faith" on the criminal legalisms "authorizing" the crimes is not a judgment that an AG can make with any credibility or legitimacy.

The proposition that a reasonable person actually believed, in good faith, that slamming a captive's head against a wall 30 times; keeping them awake for a week and a half; or subjecting them to water torture did not constitute cruel, inhumane, or degrading treatment, is absurd on it's face.

But, even if it were not absurd, it is the role of the court, not the prosecutor, to be the finder of fact on such matters. While "just following orders" may prove to be a legitimate defense in a given case, it mustn't be allowed to be institutionalized as a blanket "get out of jail free card" by "prosecutorial discretion."

The burden is on the person who committed war crimes to prove their "good faith" state of mind to the satisfaction of a court. This is what our courts are for -- to pass judgment on such "tough questions" case by case, in accord with processes designed to keep the judgment as free of passion or prejudice (or political pressure) as possible.

In other words, to do it in a way that gives US ALL confidence in the result.

We know war crimes were committed by employees of the CIA. By refusing to charge them, Holder makes ALL CIA agents war criminals in the public mind. If some of those who did participate can show that they acted in "good faith," Holder's refusal to charge them is denying them the opportunity to clear themselves.

[babylonsister]

3. Holder hasn't refused anyone anything yet. But I do think,

as the OP indicates, that politics shouldn't be anywhere near what the judicial department's job is.