Senators John McCain, Lindsey Graham, and Joe Lieberman have sent a letter to President Obama urging him not to prosecute Bush Justice Department officials who wrote legal rationales for torture. “[T]he Department of Justice is currently conducting an internal ethics review of the OLC memos,” the trio write, “but that is a quite a different matter from making legal advice with which we may disagree into a crime.”
This has been a common refrain from these three for some time, but this letter belies the facts that the use of torture predated the memos that were written to retroactively justify it, and that the Attorney General has independent authority to investigate and, possibly, prosecute their authors. I’ve pasted the full text of the letter below the fold.
We write with concern about proposals to prosecute previous administration officials for their legal analysis related to the CIA interrogation program. Pursuing such prosecutions would, we believe, have serious negative effects on the candor with which officials in any administration provide their best advice, and would take our country in a backward-looking direction at a time when our detainee-related challenges demand that we look forward.
“We agree with your position that CIA interrogators, carrying out operations that had been deemed lawful by the Attorney General, should not be the subject of prosecution. Indeed, we addressed such a possibility in the 2005 Detainee Treatment Act, which holds that “good faith reliance on advice of counsel should be an important factor, among others,” when considering whether CIA interrogators had good reason to believe that their activities were legal.
“We disagree, however, with Administration statements suggesting that the lawyers who provided such counsel may now be open to prosecution. Some of the legal analysis included in the OLC memos released last week was, we believe, deeply flawed. We have also strongly opposed the overly coercive interrogation techniques, including waterboarding, that these memos deemed legal. We do not believe, however, that legal analysis should be criminalized, as proposals to prosecute government lawyers suggest. Moving in such a direction would have a deeply chilling effect on the ability of lawyers in any administration to provide their client – the U.S. Government – with their best legal advice. Providing poor legal advice is always undesirable, and the Department of Justice is currently conducting an internal ethics review of the OLC memos, but that is a quite a different matter from making legal advice with which we may disagree into a crime. “Given the great challenges that face our country in dealing with detainees currently held at Guantanamo Bay, Bagram Airfield, and elsewhere, along with detainees that will undoubtedly fall into U.S. custody as the result of future operations, we have every interest in looking forward to solutions, not backward to recriminations. That is why we do not support the idea of a commission that would focus on the mistakes of the past. “As you have made clear, we are a nation at war. Appreciating that reality, we look forward to working with you on the panoply of detainee issues, ranging from interrogation standards to the disposition of detainee cases, which will engage our country going forward. In the interest of national security, it is the future, rather than the past, on which we believe America’s gaze must be fixed.
