The Just-Following-Orders defense

Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel under George W. Bush, offers appallingly bad advice about what to do in regard to "the Bush administration's harsh, abusive and illegal interrogation program". His solution: Let whatever investigations now going on run their course and then forget the whole matter. No Congressional hearings, no special commission, no DOJ task force, no special prosecutor. Just wind down the pitiful few investigations that have occurred, publish some of the documents they turn up, but make sure to turn the lights off when you're done.

The main reason that law-breakers should not be prosecuted, in his estimation, is that the people involved won't take it well. They're already quite unhappy at the prospect of being held accountable, you see, given that they were just following orders.

The investigations and public recriminations of the past few years have led many government lawyers to be more risk-averse and politically sensitive than ever. They have also had a harmful effect on the lawyers' clients, especially in the CIA. In response to the many investigations, CIA officials are "lawyered up" and are drawing down their legal liability insurance. None of these officials are likely to go to jail. But the ordeal of answering subpoenas, consulting lawyers, digging up and explaining old documents, and racking one's memory to avoid inadvertent perjury is draining, not to mention distracting, for those we ask to keep the country safe.

And worse, it has spooked the intelligence community. When the CIA was asked to engage in aggressive tactics early in the Bush administration, it knew from bitter experience that the political winds would change and that it might be subject to "retroactive discipline." And so it sought approval from the president and his Cabinet, informed congressional leadership many times about what it was doing and got what it thought were airtight legal opinions from the Justice Department.

But these safeguards failed, and the CIA is once again mired in investigation and controversy. The lesson learned by many at the agency is that politically sensitive counterterrorism actions should be avoided, even if they are deemed legal and even if they have the express approval of political officials. We are going to be living with this skittishness for a long time, to the detriment of our security.

You'd have thought that getting a letter from the Office of Legal Counsel authorizing violations of the laws on torture would be good enough to protect you in the future. But oh, no, you'd be mistaken! You can actually get prosecuted for obeying illegal orders. Or nearly as bad, have to rack your memory in order to tell the truth about those orders. That's practically torture, right there.

The people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses. Little will be achieved by further retribution.

'Mistakes' must be the terminus technicus at the Office of Legal Counsel for what ordinary civilians call 'crimes'. It's also interesting to learn that the Justice Department considers "reputational losses" to be the most severe penalty, or 'retribution', that can be inflicted on criminals. Once they've achieved that, trials leading to convictions and jail time are pretty much superfluous.

crossposted at unbossed.com