WASHINGTON — Despite the growing demands to bring criminal charges against the authors of the so-called torture memos, even critics of the Bush administration see problems with seeking to prosecute lawyers such as John C. Yoo, Jay S. Bybee or Steven G. Bradbury.
First, the lawyers would have to be shown to have deliberately misinterpreted the law against torture.
For The Record
Los Angeles Times Friday, April 24, 2009 Home Edition Main News Part A Page 4 National Desk 1 inches; 52 words Type of Material: Correction
Interrogation prosecutions: An article in Thursday's Section A about Bush administration lawyers who wrote memos authorizing harsh interrogations of Al Qaeda suspects said three Senate Republicans had sent a letter to President Obama opposing any prosecution of the lawyers. The letter was sent by two Republicans and an independent, Sen. Joe Lieberman.
"It would be a real stretch. As long as they thought they were honestly interpreting the [anti-torture] law, they are not criminal conspirators," said Stephen A. Saltzburg, a law professor at George Washington University and a former prosecutor. "They may be bad lawyers who gave extremely bad advice," he said, but that is not a crime.
The other problem looms even larger. How could the government prosecute the mid-level lawyers who wrote memos but not the top officials -- including former President George W. Bush and former Vice President Dick Cheney -- who ultimately authorized the waterboarding of suspected Al Qaeda operatives?
"That's why this issue is so sensitive," said Tom Malinowski, Washington director of Human Rights Watch. "Once you begin a serious discussion of criminal prosecution, the question quickly becomes: Why prosecute those in the middle of the chain of command but not those who made the ultimate decisions at the top?"
On Wednesday, a newly released timeline indicated that the Bush White House approved the CIA's use of waterboarding in July 2002, pending the Justice Department's legal blessing, which came a few weeks later. That too would complicate a move to prosecute the lawyers and not the higher-ups.
Three Senate Republicans, led by John McCain of Arizona, sent President Obama a letter Wednesday strongly urging him to steer clear of criminal prosecutions of Bush's lawyers. "Providing poor legal advice is always undesirable," the letter said, "but that is quite a different matter from making legal advice with which we disagree into a crime."
House Speaker Nancy Pelosi (D-San Francisco) made it clear that Congress would pursue the matter regardless of whether anyone was charged. She said congressional committees and possibly a nonpartisan truth commission needed to investigate what happened.
She also would not rule out the possibility of impeachment proceedings against Bybee, who is a judge on the U.S. 9th Circuit Court of Appeals in San Francisco, if he were found to have misled Congress during his confirmation hearing in 2003.
