A CHILLING EFFECT:
The Justice Department has announced that the former Justice Department lawyers who authored legal memos justifying the use of coercive (read, torture) tactics against Al Queda prisoners, will not be subject to legal prosecution. The title of the post links to the article.
Lets, break it down to its simplest elements.
The United States Justice Department will NOT prosecute attorneys who rendered a legal opinion that we now believe to be both wrong, and odious to the principles upon which this country was founded.
Since when was it a crime to author a legal opinion?
Many of us are called from time to time to interpret statutes and case law for our clients. Those who have a modicum of talent for it command a high fee for their abilities. (The others are mostly likely to don a black robe at some point, but that's another subject for another day.)
Many times the legal opinion is correct. Sometimes it is not. Under what theory can having the wrong view of a law render the attorney subject to criminal prosecution?
Can you imagine the chilling effect prosecuting lawyers for having the wrong opinion about a law would create?
Lawyers who have been "house counsel" for criminal organizations have been subject to prosecution. But in those cases the prosecution was able to prove that the attorneys entered into a conspiracy to assist their clients in breaking the law.
In the "torture memo" case, the issue is whether Justice Department attorneys committed a crime by giving a legal opinion endorsing as legal the methods the CIA wanted to use to extract information?
In our opinion the authors of the "torture memos" were dead wrong. Their view of the Constitution was antithetical to all that we believe the Constitution stands for. However, the operative phrases there are "in our opinion" and "we believe."
Can you prosecute attorneys for having the "wrong" opinion? Who decides what is right and what is wrong?
In the 1950s the government prosecuted attorneys for being communists. Do we want to go back to those days?
According to the NY Times article, the Justice Department is not ruling out seeking action against the attorneys by their respective state bar associations. This is just as bad. "We may not throw you in prison for having the wrong views, but we might just take away your ability to practice law."
Nothing about this is good.
The issue of torture has fallen before the crucible of American opinion, American elections, and the debate among Americans. Hopefully future presidents and future generations will learn from Bush's folly. But we gain nothing, and we lose our ideals and our identity when we prosecute thought and opinion, no matter how wrong, no matter how "Anti-American" the opinions are.
See you in court, wearing a coat, because it's getting a bit chilly out there.