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Recommendation against Criminal Prosecution of Authors of Torture Memos

By Jack M. Balkin

The New York Times reports that an internal DoJ investigation recommends against criminal prosecution of the authors of the torture memos.

An internal Justice Department inquiry into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted, according to government officials briefed on a draft of the findings.

The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask that state bar associations consider possible disciplinary action, including reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.

We won't know the grounds for this recommendation (assuming the NYT is correct) until the report is made public. Perhaps there was insufficient evidence of criminal conduct by the lawyers, or maybe it would be too hard to prove in court. The communications between the CIA and OLC lawyers surrounding the writing of the memos are crucial to this determination--and should be made public.

These events may well have revealed a template for how high government officials can successfully engage in a conspiracy to violate U.S. law: Run a proposed illegal course of action through the OLC, have the Office lawyers produce a "legal opinion" (no matter how tortured) finding that the actions do not violate the law, and you are all set. The key is to get the OLC lawyers to go along.

After the dirty deeds are done, if the illegal conduct is exposed and serious heat comes, the policy makers (the "deciders") can say they cleared it with the OLC lawyers; those who engaged in the illegal conduct can say they relied upon the authorization of the OLC lawyers; the OLC lawyers can claim they wrote the memos in good faith under pressure, and complain that it is unfair to second guess them after the fact.

Done.

Full post as published by Balkinization on May 05, 2009 (boomark / email).