May 4, 2009

Don’t Rule Out Prosecutions

In the wake of President Obama’s praiseworthy decision to make public the Bush administration’s Office of Legal Counsel torture memos, some commentators have taken the view that the Obama administration should rule out the possibility of torture prosecutions. Not so fast.

The president established a Special Task Force that is reviewing interrogation and rendition policies. The U.S. Department of Justice’s Office of Professional Responsibility is investigating the shoddy lawyering behind the torture memos and perhaps outside interference in those opinions. The Senate Select Committee on Intelligence is investigating the CIA’s detention and interrogation program. A national investigative commission remains an important option.

The factual record, in other words, has not been fully developed and reviewed—and no good prosecutor would make a final determination until all the facts are in. It is far too early to tell whether individuals committed acts outside the boundaries established by the legal opinions—acts that may yet result in prosecutions.

President Obama and Attorney General Eric Holder correctly explained the defenses available to CIA employees who reasonably relied in good faith on authoritative legal advice from the Justice Department and who conformed their conduct to that advice. As the son of a former CIA employee, and as a former U.S. attorney and state attorney general who has ardently defended government employees, I have no quarrel that CIA officers who reasonably and in good faith followed legal opinions issued by the Office of Legal Counsel should not be prosecuted.

Reasonable reliance on the legal opinions supports an “advice of counsel” defense. Good faith in discharging orders obviates the criminal intent requirement. Both can pertain so long as officials remained within the scope of the approved techniques.

But if the conduct was so abhorrent that reliance on the opinions and orders could not be reasonable; if individuals did not act in good faith; or if the conduct either went beyond what was authorized, or was undertaken when predicate conditions for the techniques were not applicable, then the conduct would fall outside the shelter enunciated by the president and the attorney general.

The statements issued by President Obama and Holder leave wide open—as they should—the possibility of prosecuting government officials if the evidence ultimately shows they engaged in illegal conduct outside the scope of the boundaries or predicates of the OLC opinions. The statements do not excuse the role of contractors in these abhorrent practices and do not resolve the questions of whether contractors are due the same consideration as government employees or how the profit motive inherent in private contracting may have influenced interrogation decisions. These questions all remain unanswered, merit investigation and may prove to justify prosecutions.

Our nation bears responsibility to learn from the mistakes of this dark episode. Even if criminal prosecutions should not result, Congress, for sure, and, I believe, the American public must ultimately know what really happened behind the sanitized legal descriptions of individual techniques, and in what conditions, intensity and duration. This accounting will not be easy or proud, but it will help show the world that the America it knew and counted on is back.

There is no bomb or army that can match the power of America’s moral standing in the world. Reclaiming it is vital.

By: Senator Sheldon Whitehouse