Tuesday, April 21st, 2009
A quote from Philip Zelikow:
Which underscores the importance of moral analysis. There is an elementary distinction, too often lost, between the moral (and policy) question — “What should we do?” — and the legal question: “What can we do?” We live in a policy world too inclined to turn lawyers into surrogate priests granting a form of absolution. “The lawyers say it’s OK.” Well, not really. They say it might be legal. They don’t know about OK.
And in his section on the relevant legal opinions re OLC:
3. The legal opinions have grave weaknesses.
Weakest of all is the May 30 opinion, just because it had to get over the lowest standard — “cruel, inhuman, or degrading” in Article 16 of the Convention Against Torture. That standard was also being codified in the bill Senator John McCain was fighting to pass. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 does apply to these prisoners. Violation of Common Article 3 is a war crime under federal law (18 U.S.C. section 2441), a felony punishable by up to life imprisonment. (The OLC opinions do not discuss this law because in 2005 the administration also denied the applicability of Common Article 3.)
It seems to me, just to drive this point home, that while the “lawyers” provided their views, this past administration should be the subject of “fault finding” and prosecution.