The OLC Memos

A quick crosspost of a comment related to this that I had just made over at your old home: What the torturers did is abominable, however, there's no question but that they never would have done this without the orders coming down. George Tenet was very concerned -- even paranoid -- about the possibility that CIA folks would be hung out to dry over this kind of stuff, and he went to great lengths to ensure that orders relating to coercive interrogations were explicitly spelled out. I appreciate the moral bankruptcy of the "I was just following orders" defense, but going after the little fish would do more harm than good. It would almost certainly turn the steady stream of operatives leaving the Agency into a full-on exodus, compromising further our already weakened ability to gather intelligence, while leaving the real villains to continue peddling the same disgusting arguments that began the entire mess.

I'm hoping there is a distinction at DOJ between the field agents who are the subject of the no-prosecution decision, and the principal policy enablers like Gonzales and Yoo and Addington. Because if we are going to turn a blind eye to the latter, the international community surely will not, and someday the chickens will come home to roost.

It might be best not to prosecute or even investigate. However, the statement "it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution." is totally unnacceptable. The Obama administration has now declared that opinions of the OLC ought to determine whether or not there is an investigation *even* if the OLC wrote them in bad faith. This gives OLC opinions the force of law. If employees of the executive can "rely ... on opinions from the Departement of Justice" then the executive is supreme and can brush the constitution, the law and supreme court opinions aside by pretending to interpret them as saying what the supreme executive wants them to say. the deleted qualifier "in good faith" does not imply that the Justice Department must write its honest opinions in good faith. It refers only to the "good faith" of the subordinates who follow orders. Obama is making opinions public, but does not commit to making all future opinions public (and couldn't bind a future President anyway). In fact, the explanation of why the 3 memos are being public makes it clear that it is definitely not Obama administration policy to make future OLC opinions public. Thus we have a body subordinate to the President with the power to arbitrarily rewrite the law. This is not bipartisan consensus policy. Thus Obama has decided to attempt to eliminate the rule of law and the principle of divided government and checks and balances. He might not succeed, but I don't see why not. If actions taken in good faith following OLC opinions are not to be prosecuted (good faith by the actors not the OLC) then there is nothing left. In particular the Supreme Court is no help. If the OLC can rewrite the constitution and the laws, then it can rewrite supreme court opinions. Supreme court decisions are important because they establish precedents, not because of the resolution of the particular case. The OLC can make a plainly dishonest secret interpretation of Supreme Court precedent. If no one can be punished for acts which the OLC dishonestly claims are constitutional, legal and consistent with Supreme Court precedent, then we are not protected by the Constitution, the law or the Supreme Court. There was no need for Obama to abandon the constitution and the idea of constitutionalism. He could just have ordered his subordinates to not investigate or prosecute without appealing to the OLC. the English legal tradition includes prosecutorial discretion and the barrier between the President and career prosecutors at DOJ is a tradition, not a requirement of the constitution. By arguing that OLC opinions, no matter how clearly written in bad faith, are decisive, Obama decided that the law must bow to the power of the OLC which is subordinate to the President. I'm actually not worried about what he will do with his recently claimed absolute power. However, if there is a bipartisan consensus that the executive can't be punished for breaking the law, his successors will have absolute power too. I think that the political advantage of publicly promising not to investigate Bush administration crimes does not justify the destruction of the constitution and the rule of law.

From the beginning I've argued that ALL the details about the administrations "enhanced interrogation techniques" (AKA War Crimes) need to be brought into the light of day, whether through an active DoJ investigation, a truth commission, or just releasing the relevant docs to the "private sector" of investigative journalism. But at some point the administration needs to step in and issue pardons for the bit players, and maybe even for the senior officials who ordered these actions. It's an uncomfortable compromise, since just letting these actions disappear would send a horrible message to future administrations: in times of trouble do what you want and those who follow will cover your tracks. Such a mentality leads to truly ugly results, such as Argentina's Dirty War. But intelligence and military officials cannot be questioning every order and constantly looking over their shoulders either. For those who think this goes too light in terms of punishment, consider that none of these people will be able to travel abroad safely again and it's likely that Cheney, Addington, Feith et al. will down down in the history books as war criminals (Yoo, on the other hand, will go down as a war criminal AND an idiot)

From Ken Silverstein over at Harpers: "Five years ago, the Securities and Exchange Commission opened an investigation into possible violations of the Foreign Corrupt Practices Act by a number of major American energy firms operating in Equatorial Guinea. The FCPA bars payments to foreign officials to win business. It now appears the SEC has dropped the investigation and will not bring charges against the firms involved." Just more coherent American principle.

This will never happen again?! Because there are no repercussions and Obama says so? Go ahead, pull the other one. Once again power trumps everything, including the law, which serves power and not the other way around. This is why people detest lawyers - the whole 'justice' thing is built on lies and nice sounding fairy tales. People authorize torture and profit from it. People damage the world economy and profit from it. There is no justice for those with power. Tell me I'm wrong. I dare you.