The Rule of Law is No Excuse

by Brien Jackson

Tyler Cowen ruminates on the potential downside of torture prosecutions:

At many blogs (Sullivan, Yglesias, DeLong, among others) you will find ongoing arguments for prosecuting the torturers who ran our government for a while.  I am in agreement with the moral stance of these critics but I don’t agree with their practical conclusions.  I believe that a full investigation would lead the U.S. public to, ultimately, side with torture, side with the torturers, and side against the prosecutors.  That’s why we can’t proceed and Obama probably understands that.  If another attack happened this would be all the more true.

I’m not really sure I agree with this or not, but on that note, I definitely don’t agree with the counterargument put forward (earlier) by Greenwald:

But leave aside the question of whether prosecutions would produce good or bad outcomes.  After all, the notion that the law can and should be ignored whenever we think doing so would produce good results or would constitute good policy was the engine that drove Bush lawlessness. 

This is just ridiculous. At best, it’s a dystopian outlook where outcomes are of no consequence, at worst, it’s the flip-side of the “I was just following orders” defense, wherein “I was just applying the letter of the law” becomes a way to shirk responsibilty for whatever outcomes your choices yield. You can imagine a police officer who decides to hold up someone rushing to the emergency room using it to defend himself when someone dies waiting for him to finish writing a speeding ticket on the side of the freeway. Obviously the torture question is a bit more serious, than that, but at the same time, assuming that Greenwald would agree that rushing to the hospital is a legitimate excuse for taking some leniency with traffic laws, and that police officers should be sensitive to such mitigating circumstances, then he would be admitting that discretion in applying the law is a fundamental part of a nation of laws. Or does Glenn think that local police actually should write citations to people mowing there lawns in shorts between the hours of 5 P.M. and 8 P.M. Monday to Friday?

The question then isn’t so much whether discretionary authority exists, but what circumstances make it proper to decline to prosecute. In particular it seems the question is whether the unlikelihood of earning a conviction, or the likelihood of producing a bad outcome in the larger society, is a legitimate reason to decline to prosecute someone. With regards to the former, I think the answer has to be yes. Especially considering double jeopardy protections, if a prosecutor thinks that someone has committed a crime, but feels that a conviction is unlikely, I would argue that he has a  duty not to bring charges, because doing so would prevent action if and when a conviction was more likey (assuming he’s right on both counts). The latter is a bit of a stickier question, but I would imagine there are some circumstances in which the potential cultural outcome is so dire as to compel the use of discretion, although such situations are certainly rare.

But what’s most troubling is Greenwald’s apparent lack of concern for the outcome of actions. Greenwald could certainly disagree with the premise that prosecutions are likely to produce bad outcomes, but I haven’t seen him make those arguments. Rather, I’ve seen him make arguments like the one above, that the question is completely irrelevant. Greenwald should respond to Cowen, and clearly articulate whether he agrees with Cowen’s conclusion or not. If he doesn’t, that’s certainly fair, and Greenwald can make that argument (and again, I’m not really sure if I agree with Cowen or not). But if he does, I don’t see how a logical person can rectify calling for an action you believe will produce bad outcomes. At best, it belies someone who is far too attached to rigidity, and unable to process exigent circumstances or concerns. At worst, David Broder is right, and Greenwald just wants vengeance against political opponents, consequences be damned. And I don’t want David Broder to be right.

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