That footnote also demonstrates why if we're going to investigate or prosecute anyone, it shouldn't be the agents on the scene. In the wake of Obama's carefully crafted statement fending off prosecution for anyone who relied in good-faith on the DoJ memos, some commentators have called for looking into whether CIA agents could go down for torturing before the memos were written in August 2002. This seems wrong to me. If we went that route, we'd get around version of Abu Ghraib: a few low-level scapegoats standing in for their far more culpable superiors. Much more interesting is another possibility Obama left open: going after the lawyers who wrote the memos and the officials who demanded and approved them--David Addington, Alberto Gonzales, Jim Haynes. Rahm Emanuel told George Stephanopoulos on Sunday that Obama believes that "those who devised policy... should not be prosecuted either." But what about disbarment? And impeachment for Jay Bybee, the torture memo author who got life tenure on the 9th Circuit? It would be a start. If you think these memos are good lawyering, then you don't deserve to be a lawyer. That's a lesson the bar should desperately want to impart.On thing that I've wondered for some time is why we expect the Attorney General, appointed by the president, to actually be independent of the president. I don't have a good answer there. But it seems like the very nature of the appointment process lends itself to corruption.
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Emily Bazelon offers the following:
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I think Scott Horton makes a reasonable case for a conspiracy charge against Bybee and the other authors of the torture memos. Of course, I am not a lawyer and am hardly objective on this, so take my idea of reasonable for what it's worth, but it's worth looking at I'd say.
On thing that I've wondered for some time is why we expect the Attorney General, appointed by the president, to actually be independent of the president. I don't have a good answer there. But it seems like the very nature of the appointment process lends itself to corruption
Indeed, it is almost based on the personal and professional honor of the AG. Me, I don't believe they ever are too independent, although the press, Congress and the public constraint them. When there is no honor, and the press and Congress don't do their jobs we get Alberto Gonzales.
"On thing that I've wondered for some time is why we expect the Attorney General, appointed by the president, to actually be independent of the president."
The Attorney General is _not_ independent of the president.
The Attorney General is part of the executive branch; that's why it is an appointed position, not elected.
He is the legal arm of the president, just as the Secretary of State is the diplomatic arm of the president. That is the nature of the position. The position is for executing the powers that the legislature gives the executive branch.
The AG is directly controlled by the president and serves at his pleasure. If the AG doesn't like what the president does, he is welcome to resign, but he is not at liberty to change policy positions at his own pleasure.
Well, not really. The AG does serve at the pleasure of the president, bit the Secretary of State, for instance, can't investigate the president. The Attorney General is the country's Top Cop. The president isn't exempt from that. This is why the Bushies had to ostensibly "ask" the AG what they could legally do to KSM. This is also why people are so pissed at Bybee. The AG's is supposed to have a level of independence that other cabinet officers don't.
I think you can make a case that operatives that waterboarded Abu Zubaida four times as frequently as provided for in the memos could possibly not be acting in good faith.
http://www.nytimes.com/2009/04/21/world/21detain.html?em
* I don't have a good answer there. But it seems like the very nature of the appointment process lends itself to corruption*
Excellent point. The only solution would be to modify the constitution and make the AG a separately elected or appointed office from the presidency.
Otherwise, we should elect presidents who are honorable and self -secure enough to pick AGs of high standing in the legal community who are not excessively entangled with the president. (Eric Holder is an excellent choice in both regards.)
That means no Meeses, Gonzalezes, and no presidential little brothers should ever be appointed AG.
Yea, the AG serves at the pleasure of the POTUS, but takes an oath to the Constitution.
The unitary executive theory of government is part of our problem of governance today, where the entire Executive branch is seen as some gigantic Voltron piloted by the President. A theory that gave us Nixon and W.
I've lived in two states that follow the federal pattern of appointing their AGs, and three states in which they are elected officials.
Making AG candidates run a campaign has a couple of positive effects. One, as long as it's a contested race, you get a sense of how this person handles conflict. Which, since s/he is interviewing for the job of being everyone's lawyer, is valuable input about how s/he will do the job.
Two, and far more important, is that a different kind of person spends a career looking for an appointment versus wanting to step into another statewide office by enforcing rules and carrying out the people's business as AG. My experience has been that this second type of person--an AG who wants to top out there is vanishingly rare but it can happen--is the type I'd rather have as my lawyer.
I'm sure that there are some benefits, that are less apparent to me at first glance, to appointing an AG. Under the current conception in our democracy of how executive power works, I'm not sure how to put the advantages of the appointment structure into play.