War Crimes Prosecution of the Bush Administration - Removing the "Good Faith Reliance on Counsel" Dodge

First, the money shot from the Detainee Treatment Act of 2005:

a) Protection of United States Government Personnel- In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.

Baretta thought you shouldn't do the crime if you can't do the time. In the Bush era, this moral stringency has been visibly relaxed. Now it's okay to do the crime, even a war crime, provided you relied in good faith on Bruce Bybee, John Yoo, David Addington and Alberto Gonzalez. The exoneration clause quoted above was incorporated and extended in the Military Commissions Act of 2006, specifically referring to prosecutions for war crimes, and, for good measure, reinterpreting Common Article 3 of the Geneva Conventions as used by the American War Crimes Act. And, for better measure yet, allowing that paragon of humane sensibility, George W. Bush, to have the last word on what the hell torture even is, by publishing his gory fantasies in the Federal Register as a list of "approved techniques."

I hope Congress also offered to fluff George's pillow while they were at it. Nevertheless, one can faintly, oh so subtly, descry a baseline fear among the top Bushocrats about what they've been doing to Arab prisoners for the last six years or so. These elaborate noose-slipping phrases are unprecedented, as far as I can tell, and I've read a lot (way too many) statutes over the last 30 years. I think the guys and gals stuffing the rags down Mohammed and Khalid's throats and pouring water over their faces and into their lungs, or just beating the crap out of them, or sticking them in a freezing cell naked for days at a time, have nothing to worry about. Congress has let all that go. They certainly did not want to look soft on terrorism, and Harry (Mr. Mumbles) Reid did not use the famous "60-vote rule" to block the Detainee Treatment Act, or the Military Commissions Act, from reaching the floor for a vote with their get-out-of-jail free cards intact. The "60-vote rule" is only used by hardball players, that is, by Republicans who aren't, after all, afraid to be in the minority because they can still push the wussy Democrats around.

No, the line officer with the CIA, the Army interrogator, if they were told everything they were doing was okay with the guys (and gal) upstairs, then it's pretty clear they're not going to be prosecuted, unless Congress gets tough and repeals these exonerations (excuse me, coffee just splurted out of my nose). However....editorial boards from New York to Washington, and over the great American heartland too, have lately been taking Bush&Co. to task upon the revelation that the Torture Team meeting in the Situation Room of the White House specifically approved all these Torquemada torts while sitting in plenary session. Take this unmodulated language from the Gray Lady of Manhattan, published today ("The Torture Sessions"):

"We have read the memos from the Justice Department redefining torture, claiming that Mr. Bush did not have to follow the law, and offering a blueprint for avoiding criminal liability for abusing prisoners.

"The amount of time and energy devoted to this furtive exercise at the very highest levels of the government reminded us how little Americans know, in fact, about the ways Mr. Bush and his team undermined, subverted and broke the law in the name of saving the American way of life."

Amazing, isn't it? The same newspaper that brings you the pissy whimpering of David Brooks and William Kristol on a weekly basis also writes this very good stuff. The New York Times is calling George W. Bush a criminal. Since I want to encourage such salutary opinionating (and this accounts for the somewhat clunky title of this thing, for ease in Googling), I offer this angle, which may amount to an insight: Note that Bush's exoneration drafters used the phrase quoted in red in the DTA: "Good faith reliance on advice of counsel." Now I know what they were trying to do. Bush, Cheney, Ashcroft, Powell, Rice, Rumsfeld et alia were trying to put their best feet forward. The unctuous phrasing, in this case, was to cast them in the most sympathetic light possible. Just humble terror-fighters thinkin' what their learned attorneys were sayin' must be okay. They'd already seen the District Court opinion in Hamdan vs. Rumsfeld by this point, that quirky case that inexplicably equated Arabs with homo sapiens; and they were none too sanguine about their chances with even their Supreme Court. So they needed a way out. If what they were ordering the guys down at the dungeon to do seemed a little too far out to pass as humane under the Geneva Conventions, then their "good faith" belief that the incredible bullshit written by John Yoo (he went to Yale!) was nevertheless true could maybe do the trick. But the recent revelations concerning the Torture Sessions, where John Ashcroft, the main lawyer at the Sessions, wondered aloud about the wisdom of discussing Inquisition tactics in the White House, and opining that history "would not judge us kindly," call into question the good faith nature of this reliance.

Couple this with the slowly unraveling story about just how "independent" the opinions from Yoo, Bybee and the rest of the torture lawyers were, and you have a whole new way of assessing "good faith." The opinion from Yoo in particular (as detailed by the estimable Jack Balkin) were "stovepiped" to the White House, bypassing the usual review process in the Department of Justice. Helpfully, Bush has thrown his lot in with the Torture Session honchos, so the question can be asked of all of them: if you want to torture, and you tell your lawyers to write memos that bend and distort plain language in order to allow you to torture and which invent new interpretations of the powers of the Commander in Chief in wartime to further your ability to torture; and you set up special rules which allow this junior member of the Office of Legal Counsel to get his "anything goes" memo to the Oval Office without any meddling from more experienced (and perhaps saner) minds at the Justice Department; just what in the hell is "good" about the faith you place in these legal opinions? So while they might work for the guys further down the line, they certainly should not work for Bush and his cronies who ordered up the opinions in the first place.

So, Attorney General Sheldon Whitehouse of the Obama Administration, I offer this single brick for the edifice of justice, in the spirit of John Adams and Thomas Jefferson, you may one day construct.