Let’s say for the sake of argument that sometime in July 2001, the CIA had intercepted a communication that informed them that there were sleeper cells in the United States planning to hijack airplanes and fly them into the Pentagon, the Capitol, and the World Trade Center. The details of the plan were somewhat vague and no names were mentioned, but it was clear that some of the hijackers had trained for the mission in U.S. flight schools.
And let’s say that the CIA coordinated with the FBI at that point to try to identify suspects that had recently attended flight schools. And when, on August 16, the FBI arrested Zacarias Moussaoui, let’s say that the CIA decided to use ‘enhanced interrogation techniques’ to learn the identity of any potential co-conspirators. This, then, would have been a classic ‘ticking timebomb’ scenario. If Zacarias Moussaoui had cracked under torture and identified the person that was wiring him money, the CIA and Treasury Department might have been able to identify other people who had been wired money and potentially disrupt the plot.
Having stopped the attacks, America never would have experienced the horror of 9/11, and might not sufficiently understand why the government bent the rules and broke the law in their treatment of Zacarias Moussaoui. Yet, I think it is safe to say that a jury would have been hard-pressed to throw the torturers in prison. They probably could have been convinced that the ends justified the means in that particular case. After seeing the horror of 9/11, it was even less likely that a jury would convict torturers if they could be convinced that they were acting in good faith to prevent a second attack.
Nonetheless, the CIA demanded legal justification for such acts, knowing that over time the American people’s memories of 9/11 would fade. And that is what David Yoo and the Department of Justice’s Office of Legal Counsel provided. As weak as their legal reasoning was, it gave legal cover to the people that tortured Al Qaeda suspects and made it difficult to prosecute them for committing crimes.
It should be obvious that juries and prosecutors are less likely to look the other way at acts of torture if the torturers cannot point to a defused bomb as justification. Even less so, if it doesn’t appear that there ever was a bomb in the first place. But the defense is still the same. A crime may have been committed, but it was committed in a good faith effort to prevent a mass casualty terrorist attack like 9/11. A prosecutor or a jury have to weigh the evidence and decide whether they think that defense is valid.
It has been noted repeatedly by experts in interrogation and psychology that torture does not necessarily lead to good intelligence. It creates false leads, particularly if the victim doesn’t know the information that they are being asked to provide. Using precious resources to track down false leads can result in a net loss of security. And, taking a look at the damage that has been done to America’s global reputation from the decision to use torture, it has to be noted that even good intelligence arising from torture can make us less safe in the long run. Considerations of this type should be weighed heavily when deciding how to address the crimes that were committed by our intelligence community at the behest of the Bush administration.
Senate Judiciary chairman Patrick Leahy (D-VT) has said that we have to read the page of history before we can turn the page. He wants to uncover for the public what was done, even if it means immunizing criminals against prosecution. That is the middle position between those that want to have a war crimes tribunal and those that want to build an Ollie North Statue of Freedom to memorialize the courage and steadfastness of the torturers. I go back and forth on this issue. I would like to see George W. Bush, Dick Cheney, David Addington, Scooter Libby, and perhaps others, face a jury of their peers. If they can convince those juries to nullify the law in light of the circumstances, I can accept that. But, I also recognize how incredibly divisive such trials would be and I place a high priority on getting to the truth of what happened. So, I can understand Sen. Leahy’s position.
What I cannot support is doing nothing.
I also want to note that torturing people makes it next to impossible to prosecute them later on, leaving us with a completely untenable choice between permanently detaining people without due process and setting al-Qaeda figures free to attack again.
I’m not generally in favor of congressional immunity. But in the end I prefer that the truth come out rather than that nothing happen.
btw juries don’t make (and aren’t asked to make) the kind of decisions you describe. Prosecutors do. Juries don’t.
you are saying jury nullification doesn’t exist?
Sure it exists. But you didn’t write about jury nullification per se. You wrote as if it is the role of juries to make decisions such as “the end justifies the means”, etc. That isn’t their role.
A jury’s role is to determine the facts. In jury nullification a jury decides that certain facts don’t exist, despite all the evidence to the contrary that was presented to them. They choose to ignore the evidence before them in determining the facts so as to to avoid a specific result. But they never officially determine that the end justifies the means even if that conclusion is the reason why a juror chose chose to ignore all the evidence in front of him/her.
The “jury” doesn’t make the decisions that you say they make. Not as a jury. Those individual conclusions impact the decisions that a jury does make.
I hate legal imprecision.
well…
the law is pretty clear, despite what the OLC attempted to do. The OLC might be a defense for underlings, but can Cheney use it? A jury that looked at the facts would not have much option but to convict unless they nullified.
If the law is clear and the evidence is there then the jury SHOULD convict. The problem with the system isn’t that juries have to convict if the law is clear and the evidence is available.
If, under your example, the end justified the means then the prosecutor shouldn’t bring a case (we’ve all seen easy it is for prosecutors to NOT bring cases since that’s the situation we’re in right now).
I am just not in favor of juries taking it upon themselves to nullify a law even though I know it happens. I am in favor of limited prosecutorial discretion. I am VERY much in favor of judicial discretion in sentencing.
Let the prosecutor decide if its worth prosecuting. Let the jury decide what the facts are. Let the judge decide the appropriate punishment. That’s how the system is supposed to work. And if it really was a necessity – let the president pardon him and get it off his record.
In the end, in a true emergency the price to pay for breaking the law would be minimal at best. But if getting to that result comes down to jury nullification then you know your system is really broken.
Somehow we’ve moved way beyond the scope of your post. My only point was that your descriptions of what juries decide was misleading.
I don’t think this is off-point at all. It’s exactly the point of my post. In my mind, though, no single prosecutor should have the final say on a matter of this importance. And, even though juries shouldn’t engage in nullification, that is really what is at stake. If a prosecutor declines to prosecute, they’re ultimately judging that the jury would nullify.
We disagree.
I also think you are flat out wrong on this: If a prosecutor declines to prosecute, they’re ultimately judging that the jury would nullify. .
Most prosecutors assume that if they have a case where the law is clear and the evidence is on their side that the jury will convict. Most prosecutors are surprised by jury nullification – they don’t expect it. That’s because most juries do their duty. Not to mention most prosecutors are somewhat arrogant about their powers of persuasion – but then you probably have to be when the burden of proof is always on you.
So a prosecutorial decision not to prosecute is seldom based on the idea that the jury would nullify.
The decision not to prosecute might be based on the idea that once a conviction is obtained the judge will, given all the circumstances, impose such a light sentence that it isn’t worth the time and effort to prosecute. (This leaves out the mess of federal sentencing guidelines etc.)
what’s the line?
A criminal that is so sympathetic that a prosecutor doesn’t want to prosecute isn’t much different from a criminal that is so sympathetic that a jury refuses to convict.
Your hypothetical was Dick Cheney. Not someone sympathetic.
See above:
The OLC might be a defense for underlings, but can Cheney use it? A jury that looked at the facts would not have much option but to convict unless they nullified.
Besides, any prosecutor who has law on his side and enough evidence that the jury would have no option but to convict unless they nullifed and then makes a decision not to prosecute is making a decision independent of the jury. Not because the jury will nullify. No prosecutor with such a good case is going to refuse to bring a case because they might lose. Prosecutors lose all the time. I say that on your facts they don’t bring the case because they don’t think the person should go to jail and they are afraid that they will win. They will NOT rely on the jury to nullify. Not with such good law and good evidence and their own fantastic amazing self who is soooo good in front of juries.
Actually a good prosecutor would bring the case in all events. The law was broken. But they might assign someone like Juliet Sorenson to try it. And, oh darn, they lost.
I think any president or vice-president that experienced 9/11 would be sympathetic before a jury when their defense is that they were trying to prevent another attack of that magnitude. Cheney as an individual isn’t particularly sympathetic, but I imagine his testimony would be.
Well, let’s hope you aren’t on the jury.
Although if you are on the jury, you will be instructed by the judge as to what you are supposed to be determining. And since you won’t have any idea what the ramifications of your decision will be (assuming this isn’t a capital case) your instinct will be to limit your decisions to only the questions asked. And since in your hypothetical the law is clear so the instructions should not be confusing and there is plenty of evidence so the answers should be absolutely clear – the chances are that you will find yourself answering the first questions truthfully and then the instructions will say that if you find X you MUST find Y … and before you know it you will have convicted the VP of the United States. And then the judge will do what you always expected him to do – give him the lightest sentence possible. And the president will pardon him. And everyone will go home happy because justice will be served.
The point of my original comment.
I’d be okay with that. I’d be okay with a harsher sentence, too. I don’t think juries as obedient as you paint them, however. To Kill a Mockingbird was fairly accurate.
Juries are not predictable. So in that sense they are not obedient.
And no real life situation is like your hypothetical. There is no perfect law with perfect evidence. There are complicated laws with ambiguous evidence – that’s why juries are not predictable. You can’t predict they will convict; and (my point) you can’t predict they will refuse to convict.
The Mockingbird trial was a prosecutor’s dream case. An unsympathetic defendant (in the sense that the jury wasn’t going to sympathize with him at all) and a jury that wanted to “do its duty” as it saw it at the time. The prosecutor wasn’t going to refuse to bring the case because he thought the jury wouldn’t give him his verdict.
The relevant part for us is the conspiracy between the sheriff and Atticus to cover up the true story of Mr. Ewell’s death to protect Boo Radley. Note that neither one of them is even the prosecutor – it doesn’t even get to the prosecutor. The sheriff assumes that the jury will let him off – at least that’s what he SAYS (oh, he’ll get off so why bother doing it and destroying him in the process). But Atticus doesn’t agree to let him walk because the jury would have let him off anyway. The risk of being locked up isn’t the real risk to Boo Radley. The horror to Boo Radley would be going through the public trial. He did something good and that the trial itself will be a punishment – the verdict is irrelevant. And there is an understanding that it would be wrong to punish him for doing something good that happened to break the law.
Atticus, who moments before wouldn’t dream of letting his own son off the hook of going through a trial even with an incredibly strong self defense claim, changes his tune when it comes to Boo Radley and realizes that the trial itself would simply be wrong. Atticus isn’t the prosecutor – but THAT’S prosecutorial discretion. That it should simply not be brought to trial. Not because the trial is a waste of time and the verdict is a foregone conclusion – but because even bringing him to trial would be wrong.
It’s a huge struggle in the USA to get anyone to read any sensitive page of US history (reconstruction, for example, how well taught is that in high school or college history?) and for that reason I’m with Leahy. The Bush admin has been sort of a more illegal and condensed version of what had been US foreign policy in central and latin america for decades. a truth and reconciliation commission covering the bush years will bring all kinds of other history to light. for that reason, however, it is/will be strongly opposed – and I’m ok with waiting on it until our constitution has been restored going forward and the economy is in better shape, the cheney-limbaugh cabal has been more marginalized, and the msm more neutralized if not on board with Obama. it’s going to be intense for a lot of people and that may be why we’re seeing this bush rehabilitation tour taking place now, already some kind of pushback against reading the page.
Exactly.
I think it’s time to realize “truth” and congress/the federal government don’t belong in the same sentence.
I’ve already emailed Leahy and requested he not waste his time with his so called truth commission. I’ve seen these sorts of commissions over the years; seldom do they end in indictments/convictions/jail terms.
Ms. Pelosi took impeachment “off the table” early in 2006; I think that’s a rather large indicator of where congress stands regarding accountability and justice for bu$hco crimes– both domestic and international.
Boo, I really liked the Shelby Steele post, imo present day dysfunction and blindness are connected with inability to face facts of the past.
I still cannot accept torture as a legitimate means to information. If the Japanese tortured the inmates of an entire prison camp and found a person who knew about the mission of the Enola Gay then they could rightfully excuse the torture by saving Hiroshima from it’s fate. No….I don’t think it can ever be justified, I just think that you cannot pick who is allowed to torture for what ever reason. It is I believe a totally black and white issue that is not negotiable.
Ever read ‘The Moon Is A Harsh Mistress’? They could torture this guy all they wanted. Cells function on a need to know basis. Cell members, by necessity, can only give up very little. Until the last minute they do not know where, when or what the target is. The ticking time bomb scenario would require catching someone in the act. I’ll leave the legal and moral arguments to people better versed in those areas than myself.
The problem with letting the torturers off the hook is that every dictator is history could come up with some rationalization for his crimes of torture. If we are going accept the notion that Bush/Cheney/Yoo broke the law in good faith and for good reason, then we open the door for future lawbreakers to defend themselves with the same rationale.
The prisons are overcrowded with people who committed crimes in good faith & for good reason.
Either open the cages or add those who also committed crimes, crimes that surpass just about any crimes committed by those serving life without, or who are on death row.
The laws on torture & the statements put forth in the Geneva Conventions, allow no room for good intentions, nor good reasons.
The clearest statement claims there is No Excuse.
See you all in court for the reading of the verdicts. Till then, discussion is futile, & meaningless.
Unless, all criminals are freed till the war crimes trials start, then they have to go back to jail to complete their sentences. Isn`t that funny.
This is the biggest joke on our children & grandchildren ever.