In an engaging article, “Should Bush Administration Lawyers Be Prosecuted for Authorizing Torture?, University of Pennsylvania Law Review (PENNumbra), Vol. 158, p. 195, 2010. “Claire Finkelstein (University of Pennsylvania Law School) and Michael W. Lewis (Ohio Northern University – Pettit College of Law) debate whether Bush Administration lawyers and torture memo drafters, John Yoo and Hay Bybee, should be criminally prosecuted (or at least waterboarded).
The February 19th, 2010 release of a memorandum by the Justice Department clearing former Bush Administration lawyers John Yoo and Jay Bybee of any professional misconduct for their roles in authoring the so-called torture memos may have closed the chapter on the case against Bush Administration lawyers for formal sanctions from the United States government. But the debate about the propriety of the lawyers’ actions and the proper repercussions for them is far from over. The DOJ memorandum has renewed debate in the press and the academy about the now-hypothetical just deserts for the two men, even while Spanish authorities continue to pursue formal international criminal investigations against them.
In Should Bush Administration Lawyers Be Prosecuted for Authorizing Torture?, Professors Claire Finkelstein and Michael Lewis debate whether the authors of the memoranda concerning enhanced interrogation techniques should be subject to criminal prosecution. Professor Finkelstein opens the debate by making the case that the lawyers could have – and should have – been charged as accomplices to torture. Eschewing debates over the applicability of the Geneva Conventions, Finkelstein argues that domestic law provides federal prosecutors all the tools needed to convict the men and the rule of law demands those prosecutions be pursued. Professor Lewis counters that while a case could be made for prosecution for erroneous legal advice in some circumstances, it cannot be made here because the techniques outlined in the memoranda do not clearly constitute torture. Lewis highlights the lack of legal authority defining torture, the careful circumscription of what was authorized in fact, and the safeguards employed by U.S. interrogators. Accordingly, he concludes that Yoo and Bybee cannot be held liable as accomplices to torture even if their conclusions were later rejected.
At least no one is trying to argue for the Nuremberg defence.