Yesterday, President Obama said the following to reporters:
For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it’s appropriate for them to be prosecuted.
With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don’t want to prejudge that. I think that there are a host of very complicated issues involved there.
As a general deal, I think that we should be looking forward and not backwards. I do worry about this getting so politicized that we cannot function effectively, and it hampers our ability to carry out critical national security operations.
And so if and when there needs to be a further accounting of what took place during this period, I think for Congress to examine ways that it can be done in a bipartisan fashion, outside of the typical hearing process that can sometimes break down and break it entirely along party lines, to the extent that there are independent participants who are above reproach and have credibility, that would probably be a more sensible approach to take.
Now, this blog post is NOT going to be about whether or not Bush officials tortured suspected terrorists. Whether or not waterboarding is torture is a whole separate debate.
The question that needs to be debated is, can legal advisersbe prosecuted for giving legal advice that a later administration disagrees with. Some have said that the Bush lawyers clearly just tried to twist the law to fit what President Bush wanted to do. Personally, I give them the benefit of the doubt – I think that America was going through a tough time, right after September 11th, and I think that they really gave their professional opinions.
Personally, I’m going to side with Constitutional lawyer (and one of my legal icons) Bruce Fein, who said, “It would really be a very, very difficult case to make. You would have to show that the legal arguments were just totally concocted. It’s a very, very narrow path.”
Right now, I haven’t seen the evidence that they “totally concocted” the legal arguments, so I would say that the prosecutors shouldn’t be prosecuted; however, if they did twist the law intentionally to their side, I will lead the charge for prosecution.
The precedent that this sets if they didn’t intentionally twist the law is a dangerous one. Government lawyers who give “incorrect” legal interpretations could then be prosecuted, and that’s not a road we want to go down. That would be like charging Al Gore’s lawyers with election fraud for offering their opinion on why certain ballots in Florida should or should not have been counted.
Unless there’s proof that these lawyers deliberately lied, I really don’t think there’s a case here, and I think it’s good that President Obama has left the decision up to Attorney General Eric Holder. Eric Holder knows more about the law than President Obama (as he should – it’s his job), and I think that Holder knows that there’s really not a case here.
I honestly think that this was President Obama’s way of appeasing the more hard-core liberals who wanted to see prosecutions happen while still giving him a way to not actually prosecute anybody. Over the weekend, Rahm Emanuel and Robert Gibbs had indicated that Bush officials wouldn’t be prosecuted over the torture issue, but then a lot of the more liberal Senators and MoveOn.org got upset, and the administration changed its views. I wouldn’t call it a flip-flop, since Obama had never said there wouldn’t be prosecutions, but generally, Emanuel and Gibbs speak on behalf of Obama.
I’ll keep updating this if anything changes.