Dissent Of The Day

by Patrick Appel

A reader writes:

Maybe it's because I am a lawyer, but I profoundly disagree with Andrew's assessment that prosecutions of those who transgressed even Bush's low standard for torture would be counterproductive and would "retroactively" justify those who tortured within the Bush guidelines. Were there to be a prosecution of those who tortured within the guidelines authorized by Bush, the defendants would no doubt raise the authorization as a defense. And in all likelihood that defense would succeed. A jury would be sympathetic to CIA interrogators who acted pursuant to authorization from the Justice Department. It is a myth that there is no such thing as a Nuremberg defense. Reasonable reliance on the Attorney General's OLC, benighted though it was, would have powerful jury appeal as a defense in a criminal case -- if the judge even let the case get to the jury without tossing the prosecution.
The likely result of the Sullivan approach: the world would see that our judicial system did not punish torture. That would be the worst of all possible worlds. Now consider what would happen if Holder prosecuted the worst of the worst -- those who transgressed even the Bush guidelines. The prosecution would likely succeed and the world would see that we do set limits -- even if lower than the ideal -- on what our interrogators can do. Once the Bush Justice Department blessed this shame, it was guaranteed that there would be no perfect legal outcome. So why not go with the least bad of the imperfect options -- the Holder approach?