With this guest post I'd like to weigh in with a few thoughts on "A Dissenting View on Prosecuting the Waterboarders." In that post over at the Balkinization blog, Georgetown's Marty Lederman wrote that although he was "horrified by what DOJ approved and what the CIA has done" – that is, the subjection of so-called high-value detainees to simulated suffocation in the course of interrogation – he does not "find it so surprising, or objectionable, that DOJ would not think of prosecuting the CIA operatives and contractors, even though" Marty's been a leading critic of "the DOJ legal advice underlying the CIA's interrogation practices."
I too have been a critic of that advice, for example, in the article available here and as a drafter and signatory to the Principles to Guide the Office of Legal Counsel endorsed in that article. As does Marty's, my criticism stems from my own experience as an attorney at the Office of Legal Counsel (OLC) of the Department of Justice (DOJ). From 1993-96 I served as a deputy there, and from 1997-98 I was OLC's Acting Assistant Attorney General, as Diane Marie Amann's described in her introductory post above.
Here's why I support Marty's position:
First, to be clear, of course current Attorney General Michael Mukasey – and more likely to the point, the next AG -- should investigate what happened. OLC misinterpreted the law in a way that led to torture. No question that demands investigation!
The question is how should that investigation be framed; and today, how should members of Congress and concerned observers describe the investigation they want Mukasey to undertake.
I believe that focusing on the criminal culpability of the career guy who engaged in waterboarding/torture in reliance on the horrific legal advice is the wrong way to go. It diverts attention from where culpability truly lies. Furthermore, at this point it seems very unlikely the facts could support such a prosecution, so it would be wrong for the AG to suggest otherwise. Again, though, there absolutely should be an investigation (so Mukasey is wrong to the extent he says no to that). It is conceivable that such an investigation would uncover facts that could support a prosecution, but that is not true of what we know today. If the investigation uncovers unexpected evidence that would support a prosecution, that of course should be pursued, but it seems irresponsibly premature at this point to say that is the point of the investigation.
For decades prior to this administration, OLC legal opinions were treated by the executive branch as authoritative unless overruled by the AG or the President. During the Clinton administration it's how we understood the office (and how we consistently described the status of our legal opinions). It is how the former heads and deputies from OLC – from the Carter, Reagan and first Bush administrations – and many others, from within and outside the Executive Branch, described the office to me when, as a member of the transition team, I interviewed them just prior to Bill Clinton's taking office.
Based on all reports I've seen, the current administration continued to assert that status for OLC opinions, specifically in the face of internal objections to OLC advice on interrogation (though we now can say that wasn't appropriate given the changed role/interpretive stance of the office). Far from overruling OLC's advice, those in the Bush White House endorsed OLC's legal conclusions. Thus it is very hard, I think, to say, given all of this, that early in the Bush administration, in the wake of 9/11, when the waterboarding actually occurred, that it was unreasonable for CIA career employees to rely on what OLC and the White House instructed that the law permitted. Again, it is conceivable an investigation might turn up unexpected facts that could support a prosecution. In addition, today, and in recent years, would be a very different question, given the subsequent legislation and also all the attention to the fact OLC has not been fulfilling its traditional role, at least with regard to counterrorism issues.
I don't agree with those who suggest that it's only for the jury, and not for the prosecutor, to decide whether the reliance by those careerists was reasonable. Surely the AG shouldn't proceed with a prosecution where OLC, with the support of the White House, directed a government employee to do something and the AG continues to believe that reliance was reasonable.
Going forward, we can and should think about whether the role of OLC should be different, given our experience with this administration destroying that office. In fact, not only is that inquiry possible, it is inevitable, because the role of OLC already has been transformed – so if we want to return to the traditional role, that will require change. The 10 "Principles to Guide OLC" was one attempt by some of us to address that question, in the wake of the disclosure in 2004 of the Torture Opinion. Admittedly we took a relatively conservative approach, no doubt in part because we all were OLC alums who believed things worked quite well when we were there.
The point now, of course, is to figure out whether we can make institutional changes to increase the likelihood things work properly under the worst of conditions (though sometimes you can't – or shouldn't – design institutions tailored to the most abusive of administrations; you may need to rely at least in part on other checks). We should consider a range of possibilities. But I would caution against assuming that a radical change in the traditional, pre-Bush role of OLC is what we need. Perhaps it is, but I'm not yet sure there is a better approach to providing the President with the best legal advice than working to institutionalize standards and processes that build on and strengthen the traditional model. I would love to hear reactions and alternative suggestions.