On Torture, Who Could Still Be Prosecuted or Dinged? A Brief Rundown...

Senior Justice Department lawyers won't face prosecution for providing bad legal advice, chief of staff Rahm Emanuel said this weekend. But if a widely-anticipated report from the Office of Professional Responsibility concludes that DoJ lawyers were guilty of professional misconduct, they could be disbarred or impeached.  Still, officials who deliberately went beyond the guidelines provided by the Justice Department's OLC -- and who knew they went beyond those guidelines -- could face prosecution. The standard for judging whether the line was crossed is unknown.


## The disclosure of Stellar Wind, a code ward for most of the NSA's domestic surveillance program, may well result in the prosecution of Thomas Tamm, a Justice Department national security lawyer, who tipped off the New York Times that something big was happening. If the Obama administration faithfully interprets the law, Tamm should be prosecuted; if the Obama team allows its sympathy for Tamm's moral dilemma to prevail, he won't. 

## There are numerous civil suits pending against the NSA, contractors, and other government agencies about domestic surveillance. The government has asserted the states secrets privilege in the two major ones, Al-Haramain and Jeppesen Dataplan.  At least one of these cases will probably be won by the plaintiffs, although the Supreme Court will probably weight in on several related issues. The civil suits won't lead to prosecutions, but they might wind up producing evidence that prosecutors could use in criminal cases.

## The extraordinary rendition program. Legal by all accounts, it began in 1995 with the forced transfer to Egypt of one Abu Talal al-Qasimi. Even though the United Nations Convention Against Torture prohibits transfer of prisoners to countries known to torture, the language is fairly ambiguous and gives executive branches wide berth. Hundreds of prisoners were rendered to other countries; many seem to have been brutally tortured in ways that even the Office of Legal Counsel wouldn't sanction. The U.S. courts have been fairly clear: the executive branch is the only agent of government that can make the determination about whether other countries torture, so it's going to be hard to for a prosecutor to make a case that any U.S. official knew about impending torture in, say, Morocco or Syria -- that's because the law, as it stands, does not allow the judicial  branches to make fact-based judgments like whether another country tortures.  Some other measure of bad faith would have to be disclosed... 

## Direct evidence of U.S. military or intelligence officials interrogating or brutalizing prisoners outside the chain of command.

## Foreign prosecutions of U.S. officials. See Spain...

## Foreign prosecutions of foreign officials. The Crown Prosecution Service will determine whether intelligence officials lied about the torture and rendition of Binyam Mohamed; if so, British political and intelligence agents could face prosecution.