BARACK OBAMA is trying to split the difference on torture. He wants to move forward—no messy dwelling on the Bush-Cheney era—except that he’ll look backward if forced. There will be no independent commission to hold top-ranking officials politically accountable. But, if Attorney General Eric Holder wants to prosecute the Bush lawyers who defended the legality of waterboarding—John Yoo, Jay Bybee, and Steven Bradbury—well, the president won’t stand in the way.
What does Obama gain by this approach? For starters, he has delegated the hard choice to his subordinate—and has left himself room to maneuver once more if the political winds shift further. But, unfortunately, in the process of punting, he has gotten the policy wrong.
THE TORTURE MEMOS offend many people’s moral sensibilities. They also offend standards for competent legal advice at the highest levels of government and were filled with contortions and shoddy logic. In his important book, The Terror Presidency, the dissident head of Bush’s Office of Legal Counsel Jack Goldsmith has described the memos as tendentious, overly broad, and deeply flawed. But should bad legal advice be grounds for prosecution—even when it justifies bad policy? Or, more to the point, should government lawyers ever be prosecuted for dispensing advice?
To prosecute the lawyers for violating the federal anti-torture statute passed in 1994 to criminalize violations of the U.N. convention against torture, a prosecutor would have to prove that Bradbury, Bybee, and Yoo knew that the law clearly forbade waterboarding detainees and twisted the definition as part of a conspiracy to justify torture. In other words, you would have to prove that they knew they were giving incorrect legal advice but gave it anyway in bad faith.
This would be a very hard thing to prove in court—requiring smoking gun evidence that's unlikely to exist. And there are other complications. When Yoo and Bybee wrote their memos, the anti-torture statute didn't unambiguously cover waterboarding. (This led to their contortions about the meaning of the phrase “intent to inflict severe physical pain or suffering.”) It was subsequently clarified by Congress in the Detainee Treatment Act of 2005, which prohibited inhumane treatment of prisoners but also immunized officials who relied in good faith on earlier legal opinions about the legality of torture. Congress didn’t believe that the leaked Bush memos were so far beyond the pale that no reasonable officials could have relied on them.
What's more, there’s the “unitary executive” defense that the Bush lawyers could plausibly mount. The unitary executive is the doctrine that they claimed allowed the president to override laws that constrained his discretion to do what he considered necessary in the war on terror. Since John Yoo, in particular, expressed his extreme views about unitary executive power before joining government, and, in many speeches, after he left government, it would be hard to prove that he didn't believe the memos he wrote.
As for Bybee and Bradbury, their poor legal advice may have been motivated by ambition, but not criminal intent. Bybee, a weak and ineffectual head of the Office of Legal Counsel, delegated too much unsupervised power to John Yoo at a time when he hoped to be promoted to a federal judgeship. The least sympathetic of the three is the hackish Bradbury, writing in 2005, when the terror threat alerts had cooled and he hoped to be elevated from acting to permanent head of the OLC. But, to prove that Bybee and Bradbury didn't believe their own arguments, you would need evidence of e-mails, for example, where they ridiculed the unitary executive theory but said they would defend it anyway in order to curry favor with Dick Cheney.
You may find these defenses maddening. But they point to the danger of prosecuting government lawyers for their legal opinions (disciplining lawyers for malpractice, such as misstating the law through gross incompetence, is another matter). Alas, history is full of examples of White House and Justice Department lawyers offering dubious legal advice for political reasons, which didn’t result in prosecutions. As FDR’s Attorney General, for example, the future Supreme Court Justice Robert Jackson implausibly attempted to defend the legality of FDR’s destroyers-for-bases exchange with Britain in 1940. More recently, when the Kosovo war lasted more than 60 days, Randy Moss, head of the Office of Legal Counsel under Bill Clinton, advised the White House that it could ignore the deadline in the War Powers Resolution, despite governing law to the contrary.
And it was wise for the government to never prosecute these cases—or even to disbar these lawyers, as the Justice Department's Office of Professional Responsibility might recommend for the Bush trio. That's because the threat of prosecution can easily be used to punish legitimate legal disagreement. Take the case of Monroe Freedman, former dean of Hofstra Law School and a prominent liberal legal ethicist. In 1966, he gave a lecture on the “Three Hardest Questions” for criminal-defense lawyers. Raising the possibility of an indigent client who perjured himself to his court-appointed lawyer, he said the lawyer might be justified in lying to a court to preserve the privilege against self-incrimination in addition to lawyerclient confidentiality. The suggestion was so explosive that Warren Burger, the future chief justice, tried unsuccessfully to have Freedman disbarred and fired from his faculty job. Freedman told me that, when lawyers are threatened with prosecutions for giving politically controversial opinions, witch hunts inevitably result that can deter the sharing of candid legal advice in the first place.
At the same time that Obama opened the door to prosecutions, he rejected the creation of an investigatory commission. The motivation here is clear: Obama believes that looking backward could create a political distraction that would harm the administration’s efforts on health care and the economy.
But the fact that an independent commission would be politically distracting isn’t a good argument for resisting it. The Bush torture policies are the most serious violation of American values since the World War II internment of Japanese-Americans. A closed Senate intelligence committee investigation would be inconsistent with the transparency Obama demanded when he released the memos in the first place. At this point, only a full truth commission-style investigation can allow the Bush lawyers to make clear that they didn't conspire to break the law while focusing public opprobrium on the real architects and abettors of Bush’s torture policies: namely, the policymakers—from Bush and Cheney themselves to George Tenet, John Ashcroft, and Condoleezza Rice, not to mention the top leadership in Congress.
Previous Washington investigations—such as Lewinsky-gate and Iran-Contra—foundered when, for political reasons, they became legalized, devolving into perjury traps and the search for dubious and novel legal infractions. An independent commission would indeed be politically embarrassing—the CIA would go ballistic; Democrats and Republicans would blame each other for having signed off on torture; and the country would be distracted from the economy and Iraq. But at least an independent commission would provide the accountability that the nation deserves, focusing blame not on legal scapegoats but on the politicians who devised the torture policy in the first place. That’s an approach to scandal we can believe in.
Jeffrey Rosen is the editor of legal affairs at The New Republic. This article appeared in the May 20, 2009 issue of the magazine.