Why We Should Indict the Memo Writers

Failure to prosecute could leave the impression that the law can play favorites and that the options differ depending on your station in life.

In an ideal world, law and politics go together like peanut butter and jelly. But on the occasions when they don’t, things can get a little sticky. Enter President Obama and Attorney General Eric Holder, as they release memos in which lawyers for the Department of Justice under President Bush counseled CIA interrogators to engage in conduct that violates both domestic and international laws against torture.

It’s important for us to see in black and white the hideously distorted analysis used to justify torture by lawyers educated at some of our finest law schools and occupying some of the most influential legal positions in the government.

But the release of the memos and statements made by Obama and by the attorney general dramatize enormous problems. The scope of the problem can be reduced to four little words—the rule of law.

On Thursday, Holder tried to invoke the rule of law in describing why it was important to release the memos, even as President Obama was assuring that those who are responsible for torturing detainees would not be prosecuted.

But the rule of law doesn’t really allow for exceptions. The decision not to prosecute is a political one, not a legal one. And maybe, if I read the words in the president’s statement correctly, it’s even the right decision. President Obama was careful to say that “those who carried out their duties in good faith upon legal advice from the Department of Justice ... will not be subject to prosecution.”

I can understand why the president would not want those at the bottom of the decision-making chain to be the fall guys for those at the top. But it’s still problematic. A core component of war crimes prosecution is the idea of individual responsibility. “I was just following orders” is not a defense. But it’s also true that war crimes tribunals never prosecute all offenders. Decisions are made, based on resources, the strength of the evidence and the signal the tribunal wishes to send to the public, about which violators to prosecute. And often—as in Nuremburg and in the tribunals for the former Yugoslavia and Rwanda—priority is placed on prosecuting those with supervisory, decision-making power. Prosecuting foot soldiers who followed orders may be required, but it is rarely practical. This leaves open the quite appropriate option of prosecuting those who gave the legal “cover” to interrogators to participate in illegal conduct. These individuals can, at the very least, be prosecuted for conspiracy to torture.

Given his careful statement, it’s not clear to me that prosecution of higher-ups is entirely off the table for President Obama, although his repeated references to “going forward” and to not seeking “retribution” suggest that he’s disinclined to order prosecution. I suspect that he’s hoping the “truth commission” idea advanced by Sen. Patrick Leahy will begin to get some traction over the next few months.

But even if a truth commission does delve into the full range of the apparently illegal conduct and orders identified in these memos (and in the devastating and now public report of the International Committee of the Red Cross, documenting torture of detainees at the hands of U.S. interrogators), that does not resolve the president’s problem.

Adherence to the rule of law requires prosecution of illegal conduct, not a political compromise. A truth commission is always a political compromise. We’d never consider referring gang leaders or other criminal defendants to a truth commission instead of prosecuting them, “so we can move forward.” Once we start changing the rules of criminal prosecution in order to avoid political sinkholes (and prosecuting Bush Justice Department lawyers would be a big, stinking political sinkhole for Obama), we are departing from the rule of law, like it or not. There are consequences from our failure to meet our obligations to prosecute violations of the Torture Convention, the Geneva Convention and our own domestic law against torture.

One is that we move closer to becoming a nation of men and women and not a nation of laws. We send the signal from the very highest levels of our government that we may pick and choose when and against whom, the law is to be enforced. The other is that courts outside the United States—like Judge Garzon’s court in Spain—seem more justified in advancing prosecutions on behalf of their own citizens, who claim that they were tortured by U.S. interrogators. That prosecution may be derailed by Spain’s attorney general, who has recommended not to proceed with the case. But that will not be the last time such action is initiated in a foreign court.

Political decisions are sometimes the right decisions for the good of the country. But the rule of law is a strict taskmaster. When properly invoked, it is no respecter of political outcomes. The release of the Justice Department torture memos represents only the very tip of the complicated decisions facing Obama and Holder. But it might be best, early on, to make a clear distinction between what law requires and what politics demands.

Sherrilyn A. Ifill is a professor at the University of Maryland School of Law and a civil rights lawyer.

Read Dayo Olopade's quick takes from the torture memos on The Browntable.