Those charged with the responsibility of gathering potentially lifesaving information from unwilling captives are now told essentially that any legal opinion they get as to the lawfulness of their activity is only as durable as political fashion permits. Even with a seemingly binding opinion in hand, which future CIA operations personnel would take the risk? There would be no wink, no nod, no handshake that would convince them that legal guidance is durable. Any president who wants to apply such techniques without such a binding and durable legal opinion had better be prepared to apply them himself.
Beyond that, anyone in government who seeks an opinion from the OLC as to the propriety of any action, or who authors an opinion for the OLC, is on notice henceforth that such a request for advice, and the advice itself, is now more likely than before to be subject after the fact to public and partisan criticism.
“Political fashion”?!? The repudiation of torture is not a passing political fad! It is a universally accepted value, one that has become all too important in the decades since the Nazis tried to “legalize” their barbaric, torturous behavior. Being a Jewish-American, you would expect the Michael Mukasey’s of the world would be appalled by Michael Mukasey’s argument. The rejection of torture as acceptable behavior has nothing to do with partisanship. And has everything to do with decency. These two nimrods got one thing straight though. They’re damn right that a president who wishes to torture better be prepared to do it himself. Some CIA interrogators may have relied in good faith upon these OLC memos before torturing detainees. Prosecution of such individuals could be considered unfortunate but for the fact that amnesty sends a far worse message than prosecution: amnesty emphasizes that the world’s leading democracy condones torture. The purported “legalization” of torture through immoral, unprincipled OLC pronouncements does little to exonerate those who engage in torture. You know torture when you see it. The OLC could say all day that the CIA did not intend to torture. Maybe if it said it enough, the OLC could come to believe it too. But a liar who proclaims that he speaks the truth is not just a liar but a hypocrite.
If President Obama is said to be weakening this country, thus compromising its security, it is not through the release of secret OLC memos that rationalize the irrational, attempt to legalize the illegal, and defend the indefensible; instead it is because President Obama is going to let the torturous bastards who implemented, enforced, and executed such immoral policies walk the streets freely. Could the people of the world have lived with themselves if they'd viewed the atrocities committed by the Nazi regime as legal merely because the German government supported its shocking behavior with legislative enactments? Doesn’t the American torture statute specifically target individuals who commit “an act [of torture] . . . under the color of law . . . upon another person within his custody or physical control?” By relying upon OLC memoranda in order to indemnify themselves, were not CIA interrogators engaged in precisely the type of activity which the federal torture statute is designed to punish and prevent?
So, Mr. Hayden and Mr. Mukasey, while the point of interrogation may be intelligence, the point of the law is principle; the law is not merely a means of protecting profligates. In an ideal world, the law would be more than a rubberstamp.
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