Monday, February 22, 2010

Fantastic New Legal Defense

As expected, there will be no accountability for the Bush-Cheney lawyers who argued that torture is legal so long as the United States is doing it, the president thinks it's a good idea, and leaders of the nominal opposition party aren't inclined to make a big deal out of it.

Well, perhaps I exaggerate: these Bush-Cheney lawyers retain their current posts, and remain in good standing at the bar, but they've had to suffer the slings and arrows of an outrageous memo. Ouch!

Oh, the agony of being John Yoo and Jay Bybee -- to be chided in a memo is, for these men, no doubt the equal of having a rag stuffed down one's throat and then choked to death in prison.

As short-sighted, despicable, craven, and utterly depraved as this outcome is, I am astonished at the pretense that made it possible: that Bush, Cheney, Gonzales, Mukasey, Rumsfeld, and other principals are, in some important ethical or legal sense, exonerated because they found a lawyer who would claim, in writing, that crimes are legal. When exactly did "my lawyer said it's OK" became an adequate, non-laughable criminal defense? I have watched a lot of LA Law, The Practice, The Good Wife, and I've even done a fair amount of reading about the law, but I missed that.

I suspect countless numbers of men and women are likewise sitting in prison kicking themselves for not shielding themselves behind "legal counsel said it's OK" defenses, and for that matter, what's stopping their legal counsel from giving precisely that advice? The prospect of a sternly-worded memo? Yes, that and nothing more.

Of course, these lawyers will have to frame their crime-is-actually-legal defense in a particular way, as ably explained by Yale University Law Professor Jack Balkin -- they will have to make clear that this conclusion arises, in part, from deep and sincere ideological conviction. Passing your client a memo stating "killing your gang rival is actually legal!" would be the legal reasoning of a rank amateur; it would probably get you disbarred, and wouldn't serve your client's legal needs. Rather, you have to do a little groundwork beforehand, preferably both in and beyond the text of the memo, that can validate that you really, really believe it as a matter of abiding principle. A professional will therefore write legal advice more like the following -- mind you, please forgive my graceless clarity and feel free to legalese it up: "I have a really strong ideological conviction that robbing and killing old people / protecting one's drug-vending turf / raping children / violating the Geneva conventions / whatever crime / is the prerogative of the thieving thug / drug dealer / priest / executive branch official / whatever."

Norm Geras seems to share my bafflement and disgust.

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