The Magazine

Lawcrime

The first thing we do, let's prosecute all the lawyers.

May 18, 2009, Vol. 14, No. 33 • By TOD LINDBERG
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

Moreover, that argument about how the interrogators were relying on Justice Department guidance is a bit convenient. The CIA has lawyers of its own. What did they think? Were they of the view that waterboarding and other harsh techniques amounted to torture? The Justice Department was responding to requests for legal advice from the agency. From the way in which the Justice memos were drafted, the agency's question was not simply, "What the heck should we do with these guys?" Here is how the memo signed by Office of Legal Council head Jay Bybee, now a federal appeals court judge, characterized the circumstances of the CIA's request for guidance in his memo to CIA acting general counsel John Rizzo on interrogating Abu Zubaydah: "In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an 'increased pressure phase.' "

The CIA was seeking specific authorization of specific techniques it wished to inflict on specific individuals for specific reasons related to the specific information the agency believed they possessed and would not give up easily in the absence of resort to the specified techniques. The picture of a lone interrogator acting alone obscures the bureaucratic apparatus unfolding just outside the "torture chamber" upward through channels straight to the top. The agency was seeking permission for what it wanted to do--or at least that is a plausible hypothesis one ought to investigate, if there is going to be an investigation.

Perhaps, though it's a stretch, we should refrain from inculpating those just doing their jobs in accordance with the legal standards made clear to them at the time. Doing so, however, would entail accepting a version of the "I was just following orders" defense. We have a record of taking a dim view of that defense; it wouldn't work for you if you were a trigger man at Srebrenica or the gas master at Treblinka. In any case, the whole point of relative lenity for those at the bottom is that you are most concerned to come down as hard as possible on those higher up, the ones giving the orders and making the policy. The Justice Department didn't order the agency to undertake interrogations in a particular way. It ruled on the permissibility of the requested techniques. Who gave what orders remains a mystery.

I have no doubt that some of those who have denounced these techniques as torture in clear violation of American and international law would be willing to prosecute all the way up and down the line, from President Bush to the director of central intelligence to (and here I have no specific knowledge of the structure, relationship, or precise names of the offices involved) the head of the operations branch to the director of the interrogations section to the desk officer for high-value detainees to the waterboarders themselves. Yet that is not the principle that seems to be emerging. The legal action, as we all know, centers on the Bush administration lawyers who drafted the "torture memos" and the senior administration officials who urged them on or supported their point of view to the hilt within the administration (and against countervailing internal views, including some coming from among Bush political appointees).

It's John Yoo and Jay Bybee, then of the Office of Legal Counsel, and David Addington, then counsel in the office of the vice president, who are in the legal crosshairs. They are the ones whose prosecution is ardently sought by foreign legal scholars and magistrates. They are the ones some Democrats in Congress have demanded that an independent counsel be appointed to investigate. They are the ones the U.N. special rapporteur on torture has singled out for their "complicity" (though he'd like to see the CIA operatives on trial as well). They are the ones whom Barack Obama rather pointedly indicated were not off the hook shortly after he said the CIA operatives were. Yoo and Bybee were the main subjects of a five-year investigation by the Justice Department's Office of Professional Responsibility, as we learned this week, and were reportedly recommended for disciplinary proceedings before state bar associations.