DAVIS: The torture memos

ANALYSIS/OPINION:

On the issue of the release of interrogation memos and the decision not to prosecute interrogators, once again President Obama has shown the courage to do the right thing while angering some elements on both the left and the right.

The latter decision on non-prosecution was based on a fundamental principle that all Americans understand - fair play.

“It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” said Attorney General Eric H. Holder Jr.

“Sanctioned in advance” is the key phrase in Mr. Holder’s explanation. The principle of “good faith reliance” by the interrogators has long-standing precedent regarding certain crimes and civil actions.

Mr. Obama has also indicated resistance to criminal prosecutions of any former Bush administration officials for the policy judgments they made. If President Lincoln was opposed to prosecuting Confederate leaders who were by definition guilty of treason, then Mr. Obama’s judgment, despite anger on the left, is defensible.

Jonathan Turley - a professor at George Washington University, a thoughtful liberal and a good friend - appeared to reject the “good faith reliance” defense Friday night on MSNBC as he criticized President Obama’s decision to immunize the interrogators from prosecution and cited the “Nuremberg rule,” applicable to Nazis responsible for the Holocaust, that “following orders” is not a defense to war crimes and crimes against humanity.

Had MSNBC chosen to offer a counterperspective, which they rarely do on their evening talk shows, the obvious and vast difference in the two cases could have been pointed out. CIA interrogators were trying to obtain information from detainees in order to prevent a future Sept. 11, relying on the advice of attorneys working for the world’s greatest constitutional democracy. They were not trying to kill the detainees, much less planning a mass murder of millions, as the Nazis were.

But there are still ways to hold higher-ups accountable. The first is the establishment of a “truth commission.”

While I still have concerns that such a commission might too easily become a media circus and present opportunities for raw partisanship, if such a commission could be conducted along the bipartisan and professional models of the Warren or Sept. 11 commissions, it could have the benefit of allowing those involved to explain themselves publicly and let history judge.

The second method of accountability is the ongoing investigation by the Justice Department’s Office of Professional Responsibility on potential ethical and professional violations by senior attorneys in the Justice Department.

One of those undoubtedly under OPR investigation is John Yoo, who in 2002 served as deputy assistant attorney general in the Justice Department’s Office of Legal Counsel (OLC) and wrote or co-authored some of the memos claiming that waterboarding and other techniques that inflict intense pain, terror and human degradation did not constitute what has up to now been understood to constitute illegal torture.

Others likely included in this investigation might be subsequent authors or recipients of similar memos, including Jay S. Bybee, now a sitting judge on the 9th U.S. Circuit Court of Appeals, Steven G. Bradbury, Mr. Bybee’s successor as OLC head, and John A. Rizzo, then and now acting general counsel of the CIA.

Mr. Yoo advanced one intriguing potential defense to this scrutiny in a recent public comment.

“We were functioning as lawyers,” he is quoted on CNN.com as saying. “We don’t make policy. Policy choices in these matters were up to the National Security Council or the White House or the Department of Defense.”

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