Binding U.S. Law and Political Convenience

Now that Eric Holder has clearly stated (to Patrick Leahy, at Holder’s confirmation hearing) that waterboarding is torture, has he obligated the Obama administration to prosecute?

Not according to Eric Posner at The Volokh Conspiracy. Here are his reasons (emphasis is mine):

1. Prosecutors have enormous discretion; this is a fixture of American law. Why didn’t the Justice Department prosecute Eliot Spitzer for consorting with a call girl? Because it didn’t feel like it, that’s why. … The Justice Department has no more obligation to prosecute waterboarders than the purchasers of sex.
2. But torture is a more serious crime than prostitution, isn’t it? The practical question is one of political seriousness, not moral seriousness, and both Obama and Holder have stated that they do not want to start a war with outgoing Republicans. …
3. There are other more mundane reasons that will allow Justice Department officials to persuade themselves not to investigate and/or prosecute that are not connected to politics. Prosecutors prosecute when they believe that they will win. … Any experienced prosecutor would engage in the following train of reasoning (even putting aside the immunity provisions in the Military Commissions Act). The waterboarders themselves will testify that they received assurances from superiors and lawyers that waterboarding is not illegal, and that they believed that waterboarding was necessary to protect the nation. The superiors, up to Bush himself, will testify that lawyers assured them that waterboarding is not illegal, and that they believed that waterboarding was necessary to protect the nation. The lawyers will testify that they honestly believed that waterboarding is not torture—it caused “pain” but not “severe pain,” in the language of the statute—and that in any event statutes need to be interpreted narrowly to avoid a conflict with the president’s commander-in-chief powers. The jury will believe all these people and it will refuse to convict or, at best, it will hang, prolonging everyone’s agony. It might refuse to convict because it doesn’t believe that anyone has the requisite mens rea; because it doesn’t understand the law; or because (most likely) it just doesn’t believe that people should go to jail when they are trying to protect the nation and the law in question is confusing or ambiguous.
[…]
Obama has no reason to “rule out” ordering criminal investigations and prosecutions of Bush administration officials. After all, some people may well have gone beyond the authority given to them and would be prosecuted even by the Bush administration. And a long and inconclusive investigation might be the best way to make the issue go away. But Obama has no legal obligation to prosecute and has overwhelmingly strong political reasons to make this issue die: not just to avoid short-term disruption of his political agenda, but to avoid the long-term damage to his own power as president.

What a stunningly elegant legal argument: The Obama administration is not legally obligated to prosecute violations of the law because it’s politically inconvenient to do so.

Gee, Prof. Posner, I would love to say that you are not a real lawyer because apparently it is ideologically inconvenient for you to support the enforcement of laws you don’t like — but I can’t truthfully say that, can I? You have a law degree; you passed the bar exams; and you teach at the University of Chicago Law School — so in point of fact, you actually are a lawyer.

But you’re not a good lawyer.

Much more on this from Glenn Greenwald.

Hat tip to Memeorandum.

8 Responses to “Binding U.S. Law and Political Convenience”

  1. gcotharn says:

    Posner’s argument is not primarily about political inconvenience. Posner mentions political consideration (incl. as concerns potential damage to the power of the Executive Branch) as an aspect of the Obama Admin’s decision about whether or not to prosecute, i.e.

    1) given the Constitutionally designed gray area tension between Executive and Legislative;
    2) given the unresolved gray area question of whether waterboarding is torture;
    3) given the resulting low odds of conviction;
    4) given the political damage – both to Obama’s agenda and to Executive power – which prosecution could create;
    therefore
    5) does prosecution make sense?

    Posner summarizes his argument in his two concluding paragraphs – which, taken in their entirety, illustrate that Posner’s argument is only partly about inconvenience:

    Holder himself can’t dispute the central premise of the Bush DOJ’s war-on-terror memos; at best, he can say that (in his words) “There’s always the tension in trying to decide where that balance is struck” when the president’s and Congress’ constitutional powers conflict, and that he would have struck it differently. A jury will convict on that basis?

    Obama has no reason to “rule out” ordering criminal investigations and prosecutions of Bush administration officials. After all, some people may well have gone beyond the authority given to them and would be prosecuted even by the Bush administration. And a long and inconclusive investigation might be the best way to make the issue go away. But Obama has no legal obligation to prosecute and has overwhelmingly strong political reasons to make this issue die: not just to avoid short-term disruption of his political agenda, but to avoid the long-term damage to his own power as president. Will Holder try to stand in his way? Nothing in the transcript indicates that this is likely.

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

    Separately, I argue that America’s Founders designed politics into the Constitution. They may have considered politics a dirty business, yet they also considered politics a useful tool for balancing and moderating government. The Founders intended that Barack take politics into consideration (as one consideration amongst many considerations) when making a decision about prosecuting waterboarding. The Founders believed it moral and wise that politics be a factor.

    Though it’s constantly possible that a POTUS – in making a decision – might immorally overvalue politics, nevertheless: there is nothing inherently immoral about politics.

    That my opinion is only opinion, and may easily be disagreed with and argued against, is part of the greatness of how our Constitution is designed. It is flexible – designed for give and take; designed to stand up and be workable over time.

  2. Kathy says:

    Good to know all this, Greg. It’ll make an excellent defense if I ever decide to break into someone’s home or go on a shooting spree. “The law is flexible — designed for give and take; designed to stand up and be workable over time.”

  3. gcotharn says:

    You misquoted me. Worse, you put the misquote in parenthesis, as if it were a direct quote.

    Our Constitution is obviously designed to promote tension between the three branches. This flexibility, this give and take, are part of the reason it has stood the test of time.

    I didn’t say the law is flexible. That was not part of my argument. However, since the subject is raised, and although I’m not a lawyer: it’s my impression that most lawyers believe the law is flexible. Consider the police officer making a continuous series of decisions in the field. Consider prosecutorial discretion; judicial discretion; jury nullification, appeals courts.

  4. Kathy says:

    Oh yeah, you’re right. I did misquote you. You said,

    “It is flexible – designed for give and take; designed to stand up and be workable over time.”

    And I quoted you thus:

    “The law is flexible — designed for give and take; designed to stand up and be workable over time.”

    Your “It” referred to “the Constitution,” not “the law.”

    So, I quoted you as saying, ““The law is flexible — designed for give and take; designed to stand up and be workable over time.”

    When what you really said (substituting the definite proper noun for the indefinite article):

    “The Constitution is flexible — designed for give and take; designed to stand up and be workable over time.”

    The rest of the quote is as you wrote it, but making it look like you were talking about the law when you were actually talking about the Constitution was terribly misleading and distorted the entire meaning of what you said.

    I offer my sincerest apologies.

  5. gcotharn says:

    Thank you. Very gracious. Apology accepted.

  6. Kathy says:

    I was going to laugh at your apparent inability to recognize sarcasm, but it just may be that I can’t recognize sarcasm either.

  7. gcotharn says:

    Interesting how that works.

  8. Al Qaeda gets the plague-40 dead

    We always knew Al Qaeda was a plague. Now they appear to have the plague and it may not be an accident.

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