A year ago, in a blog post at Balkinization.com, Mark Graber discussed John Yoo’s role as an example of what he has called "the problem of Constitutional Evil." Graber’s point is that the assumption that anything that is "evil" is therefore contrary to the dominant understanding of the Constitutional is simply wrong. This is not an argument he makes lightly; Graber is the author of Dred Scott and the Problem of Constitutional Evil, a magisterial work that makes the case in historical context; orthodox, authoritative, widely accepted understandings of the Constitution may nonetheless permit actions that deserve to be described as "evil."
We may, in fact, be about to see a small example of the phenomenon in action; based on the oral arguments, it appears that the current Court is inclined to accept the proposition that an 8th grade girl can be strip searched by school officials based on nothing more than an unsubstantiated tip that she might have Ibuprophen on her person. If the link between that case and questions like torture seems far-fetched, consider the fact that in Fredrick v. Morse — the "Bong Hits for Jesus" case — the brief on behalf of the school district argued that the courts should give school officials unfettered discretion to determine the limits of students’ free speech on the grounds that such officials "operate daily on the front lines of public education." Truly, nothing is more dangerous to liberty than the abuse of language for political ends. George Orwell warned us about that danger; so did Thucydides.
I am a great admirer of Graber and Balkin. And a few months ago I wrote a post presenting the case against prosecution of Bush administration officials for violations of the Constitution per se. Recognizing the possibility that a perfectly orthodox constitutional interpretation can nonetheless lead to evil results would seem to support an argument for accepting John Yoo’s (in)famous assertion that his work in the Bush administration and that of Bybee, Addington, and others, was nothing worse than creative constitutional interpretation. "Creative lawyering" is considered high praise in the law business. And after all, John Yoo’s assertion of unlimited executive authority in a time of crisis is not entirely dissimilar to Truman’s assertion of an inherent executive power to seize control of the steel industry during the Korean conflict. That action was ruled unconstitutional, but of course the Court might have ruled the other way. Finally, it was no less a authority than Chief Justice Charles Evans Hughes who told us that "We are under a Constitution, but the Constitution is what the judges say it is."
In light of all that, I stand by the proposition that neither the conclusion that an administration has done evil nor even the conclusion that an administration has acted in violation of the Constitution is a warrant for criminal prosecution.
But there’s more. There is also the whole idea of the special role of lawyers. A few months ago I attended a conference in Jerusalem at which Natan Sharansky gave an address. During the question-and-answer period that followed, he was asked a question about the role of law. His answer was entirely dismissive: "we have lawyers," he said (I am paraphrasing from memory) "and they can justify anything." Sharansky’s view is widely accepted in many law schools; in fact, distinguished American law and society scholars in the room chimed in to lend their support to the idea that "law" has no meaning independent of the actions of lawyers. And President Obama has indicated that government agents who acted on the advice of legal counsel should not be subject to prosecution for their acts, presumably based on the assumption that accepting the advice of a lawyer is evidence that the agent had no intent to violate the law.
So there’s the argument against prosecutions in a nutshell: acts which are morally repugnant are not necessarily unconstitutional, acts which are unconstitutional do not necessarily warrant prosecutions, the intervention of lawyers provides cover against accusations of lawless conduct. It is also quite true that some of the Democratic members of Congress who are grandstanding these issues today were at least partially aware of the interrogation tactics that were being employed, and found no reason to complain at the time.
Is that it? Is that all there is? I hope not, because somewhere in this discussion I have developed an overwhelming urge to throw up. But how do we move forward without ignoring the realities of constitutional evils, the wrongheadedness of equating all constitutional violations with criminally culpable conduct, or the special role of lawyers in our legal system? How do we deal with the issue of torture?
The way forward, I think, is to get out of talking in terms of a single category of analysis. There are at least three distinct categories of issues involved here: there are technical legal issues, there are political issues, and there are deep questions about the relationship between "law" and "lawyers" in the American system. And there are at least three distinct categories of actors, too: the interrogators, the policymakers, and the lawyers. And then, there are at least three distinct audiences whose reactions we should care about: the legal professionals, the American public, and the rest of the world.
Let’s talk about the lawyers, first. I have read all the memos as they have come out, going back to the very first unauthorized releases of the memos outlining a theory of inherent executive authority drawing on Justice Sutherland’s 1936 opinion that described the president’s authority in wartime as directly inherited from the King of England. I still don’t know whether any of the authors of these memos can be reasonably charged with conspiracy to overthrow the Constitution or to commit torture. But if "the rule of law" is to mean anything, the term "lawyer" cannot simply mean "one who justifies any action" in the ultimately cynical way that Sharansky described it. We give lawyers special privileges, special immunities, and special authority, and we allow non-lawyers to rely on legal advice and to claim that advice as a protection. That is as it should be, but the consequence is that lawyers are supposed to be held to standards of ethical and professional responsibility. It is exactly the same equation that we make when we allow charitable institutions to operate without paying taxes: the benefit goes with the assumption that the public good is being served.
Based on the evidence that is publicly available, I have no hesitation in asserting that Judge Bybee should be subjected to impeachment proceedings, and that Bybee, Yoo, Addington et. al. should face disbarment proceedings to determine whether they have violated their fundamental professional responsibilities. Not because the actions they justified were evil, and not even because the actions they justified were unconstitutional, but because they used their art to creatively discover hitherto unknown ways to find justifications for evil and unconstitutional actions. To quote the motto of my alma mater, "law without morality is vain"; a person who is incapable of assuming the responsibility for that proposition is unfit for the legal profession. There’s a movie about this: it’s called Judgment at Nuremburg.
What about the interrogators? I believe that we need a Truth Commission, to be called just that. The connection to previous Truth Commissions in Guatemala, South Africa, and elsewhere is deliberate. The world no longer take seriously any claim of American moral exceptionalism; at this point we must strive to reassure the world that America seeks to be a member of the family of civilized nations. That requires historical memory, a uniquely public and uniquely political form of knowledge. Peggy Noonan’s call for unknowing, the suggestion that "sometimes in life you want to just keep walking" is anathema to the fundamental premise of a democracy. Like a free press and open elections, public knowledge and public acknowledgment of recent history is a basic precondition for the exercise of popular sovereignty. If the results of such a Truth Commission are to be criminal prosecutions, these should be reserved to commanders who are shown to have given or obeyed orders they knew to be illegal. "Illegal orders" is not a new or strange concept, it is a mainstay of military law.
And the policymakers? The Rumsfelds and Wolfowitz’s who formulated the policies and gave the orders? It may well be that the law cannot reach those officials directly. But there should be investigations into lying to Congress, among other possible offenses, to be conducted under independent, non-partisan auspices; Carl Levin’s suggestion of using retired federal judges might be a good place to start.
The case against prosecutions for evil actions or for violations of the Constitution per se stands; that is the problem of constitutional evil. The case for a public accounting and acknowledgment of those same actions gains weight by the day; that is we owe to ourselves, and what we ought to want to show to the world. And the case for some kind of action being taken against the lawyers who were involved is inescapable. These are the beginning of a way forward.