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Will Bush Lawyers Face Jail Time for Legal Advice on Torture?

By now, most agree that John Yoo and other former Justice Department attorneys gave the Bush administration shoddy advice on the legality of torturing suspected terrorists. But was their advice criminal? As Bloomberg reports, President Obama is now saying that it's up to Attorney General Eric Holder and the current Justice Department to decide whether to prosecute Bush administration officials, including the lawyers, for authorizing the CIA's use of aggressive interrogation techniques. At the same time, Obama affirmed that he would not seek prosecution against the rank and file agents who relied on faulty legal advice.

I don't envy Holder's task. If he chooses to prosecute, he's basically putting in place a precedent for prosecuting government lawyers -- himself included -- down the line. Moreover, what's the standard for prosecuting lawyers for faulty legal advice? Is it gross negligence? Or would one need to prove collusion with the client's criminal intent to commit torture and violate international law?

From a political perspective, I see the need to prosecute Bush officials to make clear to the world that this chapter of our history is behind us. But as a lawyer myself, the idea of prosecuting lawyers and making them political scapegoats terrifies me. We lawyers are often called upon to advise unpopular clients. Sometimes we make mistakes in the advice that we give. I can live with a grievance on my record. But I'd hate to face jail time for faulty advice just because someone didn't like what my client did.

What's your view on this issue? How would you make the decision if you were in Holder's shoes?

Posted by Carolyn Elefant on April 21, 2009 at 04:15 PM | Permalink | Comments (6)


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