Over the past several weeks Democrats in Congress have threatened to conduct hearings into interrogation techniques used on terror suspects during the Bush Administration. Congressional hearings are nothing knew and often produce useful information. On this subject, however, Congress already knows all there is to know. Congressional leadership on relevant committees was briefed well in advance of implementation of the policies.
More troubling is the threat of criminal prosecutions against those who signed off on the policy and who prepared action memos authorizing the practices.
Memos authorizing implementation of policy are not mere opinions. They are the means by which policy is implemented. They carry with them a detailed account of the legal authority that permits the proposed action. In this case, the memos were prepared by attorneys and approved by the appropriate Justice Department officials.
The practice of law is an art, not a science. Ask three attorneys a legal opinion and you’re likely to get three different answers. Responses often differ depending on an attorney’s area of practice. When the attorneys in question are political appointees, the matter takes on a new twist.
Private attorneys look for precedent to answer legal questions and advise their clients. They have no real ability to shape the law except the long and expensive judicial process. Attorneys who serve at the pleasure of the President in the White House and at top positions in the government are in a different position. They operate within the bounds of the law but their ability to shape the law and policy is much more expansive. When they shape the law, they do so from a particular political point of view. That is their job. Republicans did this under Bush. Democrats are doing it under Obama.
Now, after sitting on the sidelines for eight years, Democrats want to prosecute Republican political appointees for the Republican shape those attorneys gave the law while Bush was in office. This goes beyond political payback.
Using criminal prosecutions to imprison political appointees solely because their political opinion differed from the officials in power is nothing short of Soviet era use of the Gulag. The Democrats can carft their own policy. They can rail against Bush era practices. They can impose their opinions on current terror suspect treatment, which they have. But imprisoning someone for crafting policy from a political perspective that differs from your own is contrary to everything this country and our legal system was established to preserve.