Let's Have a Thorough Inquiry Into the Actions of Lawyers Working on Terrorism Questions for the Bush Administration (but not prosecute them)

At the 2008 Peter Jennings Project, former US Navy lawyer John Hutson, who is now the dean of the Franklin Pierce Law Center, was a member of a panel discussing the legal questions surrounding the Bush administration's use of what are sometimes called "enhance interrogation techniques." With the turnover to a Democratic administration this year, there have been many calls for an inquiry into these policies and other extensions of executive power during the Bush years. A particularly thorny issue has arisen with the respect to whether lawyers should be included as potential prosecution targets or whether their role as legal advisers, not policy-makers, should automatically shield them from prosecution. Writing this week for the Peter Jennings Project blog, John Hutson offers his views on this subject.

It is critically important that we figure out how the train ran off the tracks in our effort to gain actionable intelligence. Did the lawyers somehow become lackeys for misguided policy makers or did they truly believe in the legal gymnastics they engaged in? Did they just reverse engineer the legal analysis starting with the desired outcome? Was there sufficient debate? Was there sufficient sunlight on the decision making? Should a "devil's advocate" have been appointed? Did they just panic when it was vitally important that cool heads prevailed?

We need to do everything we can to assure that whatever happened will never happen again. We can't be reasonably sure of that in similar or other contexts if we don't have the national moral courage to figure out what the problems were. That said, the most important view is through the windshield, not the rear view mirror. We must always steer by the stars, not by our wake. Perhaps somewhat counter-intuitively, I believe the best way to do that would be to conduct a thorough, nonpartisan or perhaps bipartisan inquiry (think 9-11 Commission) but without an eye primarily to prosecution. Indeed, I might immunize cooperating witnesses.

It would be necessary that the inquiry be adequately funded and staffed, afforded subpoena power, and given a charter which enables it to go wherever the inquiry leads, including the E-ring of the Pentagon or the West Wing of the White House. But the key understanding is that all of this be done simply to find the facts, not to build a case for prosecution.

The legal basis for prosecution is not crystal clear although several legal scholars have made compelling cases for it. Certainly, the public's appetite for prosecutions is questionable. At a time when we have many serious problems in the country including an ongoing war, it would be a huge distraction. Indeed, at this point in time, even the inquiry itself would be a distraction, let alone actual trials.

The inquiry couldn't be limited to just the lawyers. Once you open Pandora's box, it will inevitably involve policy makers and policy implementers. That could be an ugly business, for sure. But maybe no worse than not doing anything. If we let this issue slide because it is too painful, and something like it happens again, our progeny will regret our lack of courage.