Harvey Silverglate on Torture Prosecutions


Writing in The Boston Globe, civil liberties lawyer and Reason contributor Harvey Silverglate argues that prosecuting CIA employees for using interrogation techniques endorsed by the Justice Department during the Bush administration "would make very 'bad law,' and would create a legal precedent that would haunt our criminal justice system for generations":

A CIA agent, operating in good faith, could readily consider such DOJ advice to be a binding legal opinion that he could safely follow. And in our legal system, based on an ancient Anglo-Saxon moral and legal tenet incorporated into our own criminal codes, a wrongdoer may be punished only if he knowingly and intentionally committed an act that he believed to be illegal. 

Silverglate also warns that prosecuting John Yoo or the other DOJ lawyers who said waterboarding and other coercive techniques did not qualify as torture "could, and likely would, wreak havoc on principles that civil libertarians should seek to protect." A year ago, I noted Silverglate's analysis of the obstacles to prosecuting Yoo, the main one being that it would be very hard to show he offered his legal advice in bad faith, especially given his pre-existing views on executive power and national security.