Seldom are the victims (if only the secondary victims) of a conspiracy privileged to watch that conspiracy play out before there very eyes. The entire American people have now been so privileged, as we see the Bush torture conspiracy come to a successful end. It can truly be said that at no time has the conspiracy been truly secret. When now publicly acknowledged, its broad outlines have been known.
In today’s Times we get the word that a Justice Department investigation has concluded that while mistakes were clearly made, none of the lawyers who wrote those infamous memos should be prosecuted. The conspiracy is now complete.
Let’s review the definition of conspiracy. A conspiracy involves an agreement between or among individuals to achieve an illegal end by legal means, a legal end by illegal means, or an illegal end by illegal means.
Here, the illegal end is clear. The object of the conspiracy was to violate national and international laws against torture, and to get away with it if caught.
The means: Insulate the torturers by producing bogus legal opinions that gave them legal cover. You can do that because the opinions of the Office of Legal Counsel give government employees legal cover until a court finds them invalid. This leaves the lawyers themselves vulnerable, unless you determine that they were not criminal, merely incompetent. This requires that you ignore the inconvenient fact that the overarching conspiracy is patently obvious. Each participant knew, or should have known the obvious truth that no one in this entire conspiracy was acting in good faith. The legal principle that gives government employees cover if acting pursuant to an opinion from the Office of Legal Counsel presupposes that the opinion was given in good faith-that it is an honest attempt to discern the true state of the law, not a made to order brief designed from the start to reach a specific conclusion. The lawyers knew what they were doing. The torturers themselves could not have believed that they were not torturing, or is this a case in which they merely asked: “Who should I believe, John Yoo, or my lying eyes?”.
Now the Obama administration takes the last step in the conspiracy by sealing the deal, performing in precisely the manner that the Bushies expected should the torture come to light. There’s nothing to see here, and although some of these miscreants might have to lose their law licenses, there’s no need to get the torturers, or the people who were pulling those lawyer’s strings.
By the way, don’t try this at home. For the rest of us, claiming that we were following legal advice gets us precisely nowhere, if by following that advice we expose ourselves to criminal or civil liability. Nor does a good faith defense do a lawyer much good if they have exposed themselves or their client by giving bad advice. I’m aware of one exception. If a person is sued for malicious prosecution (suing someone without good cause) he or she can defend by saying they were relying on the advice of counsel. But that defense only goes so far. It gets the client off the hook, but not the lawyer, who remains liable.
It now remains to be seen whether Congress will do something about this national disgrace. I will risk a prediction that has little chance of being wrong: we will hear a bit of sound and fury, but in the end it will signify nothing.
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