What I was hoping for from Obama:
War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, “I was just following orders.”
Ooops! Wrong President.
Update A friend reminds me of the difference between analysis and snark. The purpose of the post was to poke fun at the sudden Republican horror of the idea that anyone could be tried for war crimes, using the words of the Beloved Leader, not to argue for mass prosecutions.
In fact, I’m less enthusiastic than, e.g., Mike O’Hare, about prosecuting the people who were actually maltreating captives. No, “following orders” is no defense. But good-faith reliance on advice of counsel, especially when the advice comes on Justice Department letterhead, is a different matter: not a slam-dunk defense, but not a trivial matter either.
The question for a court, and before that for a prosecutor, is “Could a reasonable person have acted in a good-faith belief that what he was doing was lawful under the circumstances?” The fact that both the military and the FBI decided that they couldn’t lawfully do what the CIA and its contractors did — a fact that must have been known both the the torturers and to the people in the White House basement giving the orders — surely casts some doubt on their good faith.
What does seem clear is that the justification gets weaker, and the culpability stronger, as you move up the chain of command. Bush, Cheney, Addington, Ashcroft, and Gonzales, who were involved in putting pressure on the OLC to come up with those opinions, have very little defense, it seems to me. And the lawyers who wrote those opinions can claim neither “superior orders” (since an order to slant an OLC opinion would be transparently improper) nor “advice of counsel.” It seems clear that they made a bad-faith attempt to facilitate what they knew to be lawbreaking.