Illegality and Policy

Comments today by Gen. Michael Hayden make clear a further reason why the Obama Administration should name a special prosecutor to investigate potential war crimes in light of everything we know, and have recently learned, about CIA interrogations of "high value al Qaeda detainees."  Gen. Hayden has played a vocal role in arguing against the release of additional Department of Justice memos regarding the legality of certain "enhanced interrogation techniques" (i.e., torture).  Today he commented as follows as reported in the NY Times:  "It describes the box within which Americans will not go beyond.  To me, that’s very useful for our enemies, even if, as a policy matter, this president at this time had decided not to use one, any, or all of those techniques."  Without prosecutions, the very real possibility that the next Administration will revert to these practices remains.  To Gen. Hayden these memos reveal "policy matter[s]," not legal ones.  The Times also reports Sen. Ensign as commenting that "The harm [in releasing the memos] is that if we ever return to those policies, one is they can train against them now." 

Without prosecutions, torture becomes a policy preference, not a matter of domestic and international law.  The next Administration's aspiring Judge Jay Bybee will be free to issue new memos reading statutory, treaty, and constitutional restraints on practices that can only reasonably be described as torture out of the law books (on calls for Jay Bybee's impeachment see here and here).  Without prosecutions, our laws become merely "the box within which Americans will not go beyond" as Gen. Hayden put it.  Gen. Hayden's argument would make our Constitution, laws, and traditions of respecting the "opinions of mankind" (in the Declaration of Independence's language) troublesome restraints that will only be useful to our enemies.  Today's comments suggest that more is at stake than the revelation of these memos.  Gen. Hayden and others are laying the groundwork for returning to these "policies" at the next available opportunity.  As I suggested recently, maintaining these practices as flexible policy preferences may be one motivation behind Republican opposition to Harold Koh as Legal Advisor to the Department of State, and Dawn Johnsen as head of OLC.  In order to entrench the prohibition against these practices as a matter of law, not policy, those complicit in these practices should be held legally, not just politically, accountable.  And in order to ensure the future priority of the rule of law over policy preference, Koh and Johnsen should be confirmed without delay.