Prosecuting lawyers for their legal memos is no more outrageous than prosecuting the driver of the getaway car in a bank robbery. In fact, the lawyers’ job in the torture crime wasn’t just ensuring the getaway, it wwent further by convincing the tools doing the bankrobbery that what their bosses ordered was indeed to be followed, enabling the crime thereby.

Whether there was the intent to break the law is what must be found out. I find it hard to imagine that these lawyers really did consider their memos to be in line with legal standards. But this must be found out by investigating into the issue, by analysing the legal validity of the memos and their adherence to legal standards and comparing them to what these lawyers should have known and written if they had applied their best abilities to follow and interpret the law. And interesting in this context will also be an investigation into the kind of pressures and incentives applied to these lawyers to twist the law this way.

Lawyers aren’t above the law any more than politicians. If they knowingly aided war crimes by giving legal opinions that are not in line with the legal standards they must follow, then they are just as guilty of crime as anyone else actively enabling and abetting the crime.

“Let’s hope that Obama and Holder will not follow up on today’s remarks. It would be terrible if they did. A major witch hunt would ensue, resulting in partisan politics as never before. If you thought the last eight years were bad, wait what happens when Democrats declare a legal war on Republicans.”

Hand the prosecution over to non-political prosecutors – people who may have voiced their opinion on torture before, but who are not so deep into politics that it could be assumed they would let either political side get away with crimes. Despite the existance of such terrible lawyers as Bybee and Bradbury, not all good lawyers follow a political agenda.

For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some
simple propositions. One of them is that lawyers who dispense bad advice about law
of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.

This is important – are you sure the cases are similar enough to say a precedent is in place, and are you sure that relevant laws haven’t changed since then? We need to make sure no one fudges this in any facet or aspect.

I just worry that Obama’s other plans will be derailed now that he’s done the right thing. Both left-wingers and right-wingers have made this issue about something more than it is for a while now. The more rabid phalanx of the right-wingers have made it a point of pride to have no one in the previous administration accountable for anything, while those equally focus-lacking on the left seem to think it a be-all and end-all to get someone “CHIMPEACHED!!!!!2!” Yeah, as if that is going to retro-actively make up for the fact that you lost to the guy twice for being so confused and self-assured. Get real and stay out of this, I say.

Be warned – you should have pointed out that this precedent should only be considered as just that – a precedent that merely happens to involve the Third Reich. No one wants That Rule to rear its ugly head.

From what I can see Obama is not supposed to exert any pressure on the DOJ. In that regard Emanuel and Gibbs placed undue weight *in the other direction* when they said that prosecutions should *not* come to pass. They have not tried to spark any witch-hunting or abused their office in order to instigate prosecutions – on the contrary they may have spoken out of line against such proceedings. Obama just cut through it all with the right decision – it’s in the DOJ’s court. He’s not supposed to “open” or “close” the door about this in the first place. Greenwald, however, slams the door shut here:

“Decisions about prosecutions are meant to be apolitical. Those decisions are about vindicating equality under the law, not about forging bipartisanship by placating the political party of the criminals and ensuring that our political elites continue, in the name of “harmony,” to retain their license to break our laws with impunity.”

Heh, I guess Peggy Noonan started walking too quickly.