Bainbridge and Arend are concerned about the reach of international prosecutions for torture and the liability of lawyers for the actions of their clients. If I believed that John Yoo came to a good faith reading of the law in response to a request to torture from his presidential client, I can see the latter point. But that's precisely the issue at hand here. That's why the internal Justice Department report on the professionalism of those memos is so critical - and why there is a scorched earth campaign to prevent DOJ from releasing a report judging them the work of incompetents or, worse, hacks. From where I've been sitting, Yoo acted not as a lawyer following the law, but as an apparatchik making a mockery of the law in order to accomplish clearly criminal ends. Lawyers, perhaps more than others, need to be held to account for breaking the law - especially the laws on such a fundamental issue as torture.
Scott Horton also spells out why Spain - and other countries that take laws and treaties against torture seriously - doesn't have that much of a choice anyway:
Bainbridge concludes with the view that “The Bush policy on terror was a bad policy. But allowing Garzón to go forward is also a bad policy.” This perspective is very troubling to me.
The major fallback defensive position now adopted by the torture camp (which does not include either Bainbridge or Arend) is that this is all an honest difference about policy and that we really shouldn’t be criminalizing such differences. But in fact torture is criminal conduct, and has been understood as such for a long time. As Jeremy Waldron demonstrated in a recent article, only genocide and slavery share a similar basis of universal acceptance as criminal conduct, and of the three, the arguments for torture are the strongest.
The discussion is whether the prohibition against torture will be upheld or simply become a dead letter. If it can be overcome whenever a government can get its handpicked lawyers to issue opinions saying torture is okay, then the prohibition will be worthless, becauseunfortunately for my professionsuch lawyers have always been available for the asking. On the other hand, it may be that this approach can only be effectively thwarted if lawyers know they face criminal law accountability for giving a green light to torture.