by Jacob G. Hornberger
Let’s assume that a U.S. president authorizes the CIA to rape the family members of suspected terrorists as a way to get them to talk. He also authorizes his subordinates to place the suspected terrorists on a rack that stretches them apart until they confess and disclose all details of their suspected terrorism.
Before he issues the authorization order, however, the president secures a good-faith legal memo from Justice Department lawyers stating that suspected terrorists, as illegal combatants, are not entitled to any legal protections, including protection from torture and rape.
Under U.S. Attorney General Eric Holder’s new order authorizing a preliminary investigation into torture by CIA personnel, those CIA agents who have raped and tortured suspected terrorists would apparently be immune from prosecution.
Because Holder obviously feels that if CIA personnel are following the guidelines established by their superiors, it would be unfair to prosecute them for torturing the suspects or raping members of their family.
What about the president or others who authorized the rape and torture? According to Holder’s reasoning, apparently they too would be immune from prosecution if they were relying in good faith on legal opinions issued by Justice Department lawyers establishing the legality of the torture and the rape.
What about the attorneys who wrote the legal opinions? Would they be subject to prosecution? No, because they would simply be attorneys rendering good-faith legal opinions in response to a request from their superiors.
So, isn’t that nice? Everyone who rapes and tortures, everyone who authorizes the rapes and torture, and everyone who opined that the rapes and torture were legal would apparently go scot-free under Holder’s reasoning.
I know that there are those who get upset over comparisons to Nazi Germany but it seems to me that a comparison is in order.
When Hitler and his cohorts issued the order authorizing the Gestapo to round up Jews, incarcerate them in concentration camps, and kill them, the personnel who actually committed such acts could not be prosecuted under Holder’s rationale. The Gestapo agents would claim that they were simply following the orders of their superiors and show that their conduct fell within the guidelines established by their higher-ups.
Could Hitler and other higher-ups have been prosecuted for the Holocaust? No, at least not if they would have been able to produce legal opinions from Nazi lawyers opining that rounding up Jews, incarcerating them, and killing them was legal given the exigencies of war.
What about the Nazi lawyers? Could they have been prosecuted? No, because they would have just been lawyers delivering good-faith legal opinions that they knew would make their superiors happy, not the people who actually did the round-ups, incarcerations, and killings.
What a crock.
When people break the law, they need to be prosecuted whether they are German, American, British, Japanese, or any other nationality and whether their victims are Muslim, Jewish, Catholic, Protestant, atheist, or a
The “I was just following orders” defense should be disallowed. If people are too weak psychologically to say no to unlawful orders, then they shouldn’t be working for the CIA, the Gestapo, or any other government agency with the power to initiate force against others.
Higher-ups who authorize or order unlawful conduct should not be permitted to get off the hook simply because they have succeeded in securing legal opinions from sycophantic lawyers falsely opining that such conduct is lawful.
And sycophantic lawyers who issue false legal opinions to high government officials opining that unlawful conduct is legal should be subject to prosecution as well.
Otherwise, the United States is no different from any other country whose officials are immune from prosecution for torture, murder, rape, and other crimes.