Why we 'need to look forward'

Destruction – in both a literal and constitutional sense – has been left in the wake of the eight-year Texas tornado that was the George W. Bush presidency. Citizens are understandably upset, but criminal prosecutions of former (or current, for that matter) government officials, cathartic as they may first appear, are not the answer.

While journalists, politicians, law professors, and other indignant dignitaries have called for investigations of high-ranking Bush administration officials, President Barack Obama has tried to temper their zeal. His assertion that “we need to look forward” is valid, but it perhaps requires further explanation.

As a preface, this subject requires total intellectual honesty and political consistency, rather than the kind of thinking that says that it's okay to burn and pillage your way through the legal system in order to get your enemies. (We all know where that road leads...)

One must bear in mind the challenges of successfully prosecuting and convicting these officials. After all, following legal advice that appears to have been given in good faith is a valid defense to a criminal prosecution. That leads us back to the legal abominations known as the “torture memos,” a cynical lawyers' trick about which I've written in the past.

The lawyers who wrote the memos should be professionally disciplined or perhaps even disbarred, but not indicted. Likewise, the actors who proceeded on the basis of the "legal" advice should not be prosecuted. That includes Bush and Cheney, for whom it is very difficult for me to muster any sympathy whatsoever. Their situations, however, must be analyzed much the same as the situation of any person in our legal system.

In my view, it boils down to jury dynamics. Getting all 12 jurors to agree to vote guilty – or, for that matter, getting all to acquit – would be virtually impossible. Every trial almost certainly would result in a hung jury and would have to be re-tried time and time again, without producing a verdict. Eventually, a judge would have to dismiss each and every prosecution.

A prosecutor has an ethical obligation to indict someone only if he or she believes, in good faith, that he/she can obtain a jury verdict of guilt "beyond a reasonable doubt." There's just no way that any of these cases stands a decent change of producing unanimity among jurors. Some jurors are bound to conclude that in the fog of terrorism, so to speak, it’s understandable that some government officials and agents opted for legally questionable responses. So it would be unethical, in my view, for federal prosecutors to seek to indict and try them. The best we can do is to disbar or otherwise discipline the unethical lawyers who produced the dubious (at best) legal advice that was, or appears to have been, relied upon by government officials and agents who went on to do unspeakable things.

As for the malefactors at the top of the pyramid, the political system has gotten rid of them at long last ("our long national nightmare is over"), and history will have to deal with the rest. And as for the people toward the bottom of the pyramid – the ones who believed or at least arguably believed the "legal" advice in the John Yoo and David Addington "torture memos" – they now have a new commander-in-chief whose quite different bidding they now will do.

This is the best that we, as a free society under the rule of law, can do. "Revenge is mine, sayeth the Lord."

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