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Tuesday, April 21, 2009

The First Thing We'll Do Is Prosecute the Lawyers

Dick the Butcher had a vision of a Utopia without lawyers. President Obama now has created an environment in which the leftist mobs clamor for a Utopia where the heads of Bush administration lawyers are on pikes. As set out in Obama Open to Prosecution of Officials Who Cleared Interrogation Tactics:
President Obama left open the door Tuesday for charges to be brought against Bush administration lawyers who justified harsh interrogation techniques, though he continued to argue that CIA agents who used those tactics should not be prosecuted.

The president showed wiggle room on the issue as he faces calls from Democratic lawmakers and organizations like the American Civil Liberties Union to support such charges. Asked about the possibility of prosecution related to the interrogation program, the president deferred to Attorney General Eric Holder.

"With respect to those who formulate 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," Obama said . . .
I would call that statement pure "chicken shit" except that would demean both chickens and shit.

I cannot imagine the mindset of the alleged "liberals" who want so badly to impose their world view on everyone else - even at the point of gun - and then claim they are protecting liberty.

Not that I feel there is any merit to pursuing such claims. I am not alone in my view, as seen here:
"It would really be a very, very difficult case to make," said Bruce Fein, a constitutional lawyer and former official in the Justice Department's Office of Legal Policy.

Not impossible, though. Fein said the prosecutor in the case would have to prove that the Bush attorneys essentially fabricated the legal justification in their memos.

"You would have to show that the legal arguments were just totally concocted," he said. "It's a very, very narrow path."

He said the prosecutor could try to bring charges of aiding and abetting torture, or conspiracy, to do so.

But Fein, who said there is enough evidence to warrant an investigation into top Bush administration officials over the interrogations, questioned the logic of targeting lawyers who did not by themselves order any interrogations.

David Rivkin, an attorney and member of the Council on Foreign Relations who has argued that the memos prove the Bush administration did not torture, gave a similar opinion. He said the prosecution would have to prove the memos' authors acted as part of a conspiracy to authorize what they all knew to be torture. But Rivkin said that would make all the non-lawyers culpable too.

He predicted any prosecution against the memos' authors would fail.

"In our legal system you cannot prosecute lawyers for offering legal opinions, even if you disagree with them," he said. "There are no precedents for prosecuting government lawyers for giving legal advice, none whatsoever."

Senate Democrats praised Obama on Tuesday for leaving the door open to prosecutions.

"I don't think they should be given ... a sort of carte blanche, sort of reprieve for those who designed the policies, who supervised the policy," said Sen. Jack Reed, D-R.I., a top Democrat on the Armed Services Committee.

But Republicans slammed the administration for floating the possibility that lawyers could be punished for doing their jobs.

"Prosecute them for what?" said Sen. Jon Kyl, R-Ariz. "Last time I checked, as a lawyer, when you give legal advice to your client, you're not responsible for whether or not that advice is going to be disagreed with in some future administration. ... If we get to the point where a lawyer cannot give, even if later people believe it to be incorrect, legal advice, then no administration is going to be safe in the future."
So the battle lines get drawn.

Justice may be blind, but she ain't dead. With the idea of prosecuting lawyers for advice, though, she's looking a little pale.

UPDATE: Yankee Sailor notes another part of the matter involving the legal memos that would form the basis of the case against the lawyers:
For the uninitiated, the memos that were released were previously classified as “top secret”, which means in the opinion of the government prior to the administration’s decision, the release of the documents would cause “exceptionally grave harm” to the national security of the United States.

If such highly classified documents can be easily obtained just by filing a lawsuit, how can Americans be sure any secrets can’t be politicized and obtained with no more than a lawsuit from a political activist?
The sad answer is that it seems to depend on what political party you belong to. Which may be the point. And that's really scary...

UPDATE2: Why am I so concerned? Let's suppose you are an attorney for the President and an issue comes up about, oh, say, what might constitute an "act of war" against the United States - in an area not touched on before -perhaps over something like a foreign nation using computer hackers to take over the U.S. power grid.

Now, sit down and write your memo, knowing that not only might war or peace hang in the balance, but also if some politician or the ACLU later feels that you are wrong in your analysis that you could be brought to trial for the memo in which you honestly set out a legal opinion.

Now, suppose that you write a memo that affirms, or reaffirms, that there is a "wall" to be kept between criminal investigators and intelligence agencies. Suppose later that politicians point to that "memo" and assert that you are responsible, in part, for a successful act of terror that kills 3000 people because of the "wall" you found in your memo was required . . .

I may not like the opinion or the result, but I'll defend the right of the lawyer to write the memo without fear of prosecution.

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