Reply #3: A hypothetical in response to another Greenwald piece: Eric Holder v. America's legal obligations

[ProSense]

Glenn points out that under the relevant treaties (and under precedent dating back to Nuremberg), "an order from a superior officer or a public authority may not be invoked as a justification of torture." I'm well aware of this. And if this were a simple case of someone being ordered to do something illegal by a superior officer, I'd absolutely believe that prosecution was warranted. But it's not that simple. These CIA agents were not only ordered to do what they did, they were advised by the OLC--the ultimate arbiter of law within the executive branch--that what they were being ordered to do was not torture.

Let me offer a hypothetical. Suppose that the Supreme Court issued an opinion holding that a certain interrogation technique did not constitute torture within the meaning of the law and relevant treaties. In reliance on that opinion, a CIA official then orders an agent to use that technique. No matter how morally repugnant or poorly reasoned the Supreme Court opinion is, does anyone believe that the CIA agent should be prosecuted in this situation or that such a prosecution would ever result in a conviction?

The situation we're dealing with here is really not all that different than my hypothetical. In order for our national system of government to function properly, there has to be an ultimate arbiter of what the law is. The Supreme Court plays that role in our system. But the same is true of the executive branch. In order for it to work properly, there has to be a body within the executive branch that acts as the ultimate arbiter of what the law is, particularly given the gray areas of the law in which the intelligence agencies are always operating. Our intelligence agencies can't just go get advisory opinions from the Supreme Court. But they need clarity or they would never act. The OLC has traditionally played that role of ultimate arbiter within the executive branch. Which is why OLC attorneys have an enormous responsibility. Attorneys like John Yoo and Jay Bybee badly betrayed that responsibility.

So to summarize, my position is not that prosecuting CIA agents is somehow a bad idea politically (though it is). My position is that prosecutions directed at those who acted in accordance with specific OLC advice are not legally feasible and would ultimately be counterproductive. I think there should be a special prosecutor appointed to investigate and that if that prosecutor finds evidence of CIA agents who went beyond the scope of the OLC memos, they should be prosecuted. But I think that any investigation should focus primarily on the people who authorized the conduct in the first place.

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Greenwald: Eric Holder v. America's legal obligations