At first blush, the Obama administration’s decision not to prosecute CIA officers for torturing (no, I’m not even going to use scare quotes) individuals facially makes sense. After all, as a press release from the DOJ states: “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.”
Makes sense, right? If you seek legal advice, and you’re told that what you will be doing isn’t illegal, shouldn’t that shield you from prosecution? Well, we have a stranger country than that.
The Sixth Circuit, for example, “has determined that reliance on counsel’s legal advice constitutes a qualified immunity defense only under ‘extraordinary circumstances,’ and has never found that those cicrumstances were met. … [T]he availability of such a defense would invite all government actors to shield themselves … by first seeking self-serving legal memoranda before taking action that may violate a constitutional right.” Silberstein v. City of Dayton, 440 F.3d 306, 318 (6th Cir. 2006). This is because, as the Supreme Court has said over and over again, every man and woman in this country is presumed to know the law. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800 (1982). It is a legal fiction, but one that exists to facilitate “justice.”
Now, the dynamic changes a little, of course, when it is the Executive Branch, which is tasked with enforcing the nation’s law, that tells you “we aren’t going to prosecute you for telling you that you can do this.” But doesn’t that sort of say that, for example, the District Attorney’s office in Harris County could tell the Houston Police Department that it’s perfectly peachy for HPD officers to tase anyone on sight? I don’t want to get into a sliding-slope fallacy, but you get my point, right?
The Bush Administration introduced a variety of demons into our legal system, and we’ve granted immunity to a fair number of them (ISPs helping the NSA with warrantless wiretapping, for example). The Obama Administration has voiced support for cleaning up the mess, and I guess the cleaning process is like Bismarck’s thoughts on watching democracy get made.
