…it’s admitting that, on a practical basis, Mukasey is right.

It’d be next to impossible to get a standard American jury to convict a CIA officer of crimes for torturing “teh evil guys,” in the best of circumstances. The defense will appeal to patriotism and apple pie and “24” and 9/11 and who knows what else, and no matter how clear the evidence, they’re not going to want to convict.

If the defense starts with a memorandum from the US Department of Justice assuring the defendant that his conduct is fully within the bounds of US laws, the slim chance became “none.” Here’s a sympathetic defendant who asked the prosecution if it was illegal, and they assured him that it was. Now they change their mind and say “oops” and want him to go to prison for it?

No jury’s going to convict that defendant. Sorry, but it’s true. It’s not a case of “we don’t have enough evidence,” it’s a case of “we’ll never get a conviction.” And in that regard, Mukasey’s right.

A future administration might try to prove that the people who wrote the memorandum knew it was wrong and didn’t care, or that the CIA officer knew it was wrong and didn’t care, but that’s a lot harder. That’s proving someone thought something, and unless the alleged thought is “he wanted to sell drugs,” juries tend not to buy it without a notarized letter from God.

If the DOJ said it was legal, they’ll never be able to convict anyone for doing it during the time that the memorandum was considered “valid,” and even afterward, a defense assertion that the defendant believed the memo still applied would carry a lot of weight. I just don’t see how anyone gets convicted of anything the DOJ said was legal.

—Matt

Yeah, sure, “just following orders”. What if the DOJ says that it’s legal to gas a room full of jews? Haven’t we heard this fucking defense before? Didn’t they hang everyone who used it?

And don’t you even try to pretend that they actually discuss these things on a case-to-case basis. They decided a long time ago that torture was OK, as a blanket principle, in direct contravention of US and international law, as well as common sense and morality. They have maimed and they have killed. Doesn’t matter if they say they have the right to maim and kill. They’re lying and they know it and they ought to be in the Hague today.

But I still believe
And I will rise up with fists!!

mattd, you give up too easy: “It’d be next to impossible to get a standard American jury to convict a CIA officer of crimes for torturing ’teh evil guys,’ in the best of circumstances.”

If the defendant is accused of doing something that was illegal, and if the prosecution proves that it was illegal and the defendant did it, your standard American jury would have to argue long and hard to come to your conclusion.

Try to imagine a case with a competent prosecutor—one not assigned to throw the case. You have laws, you have a conspiracy to break them (including the perpetrator(s) and those who gave the orders), and you have a victim (if he or she is still living and not salted away in some black site). Now try to imagine yourself on the jury. You can’t imagine a case strong enough to convince you to convict?

… and whether it was broken, and not negotiate with ourselves about whether prosecutor can win?

How is this different from the enabling law? So far as I can see, this is Nixon’s “If the President does it, it’s legal.”

Right out front and in the open.

[x] Any (D) in the general. [ ] Any mullah-sucking billionaire-teabagging torture-loving pus-encrusted spawn of Cthulhu, bless his (R) heart.

…but I have hard time imagining a prosecutor zealous to convict a CIA officer of these things. “Use enhanced interrogation methods” isn’t the same thing as “gas the Jews” to an average juror, and you can be sure the defense will argue that it wasn’t “torture” at all by the definitions the defendant was given.

The argument isn’t “I was just following orders,” because that boils down to “I knew it was wrong but I had no choice.” The argument is “I wasn’t sure it was right, so I asked the people who would be prosecuting it if it was wrong, and they said it was OK. I did my best to find out if it was OK and everyone who’s supposed to know said that it was.”

And lambert, I fully agree that we as the American people should do exactly what you say: worry what the law is, determine whether it was broken, and determine how to prevent it in the future. But the prosecutor does also have to answer “can I get a conviction,” and Mukasey said “no,” and I think that’s factually correct, even if morally wrong. Also, consider the damage that would be done to the anti-torture majority position if a big show trial against a CIA officer ended in acquittal. It would just be that much harder to bring other prosecutions in the future.

(Plus, we’re the liberals. We’re supposed to believe defendants are innocent until proven guilty because, well, that’s what the law says. Someone should ask Jeralyn/TalkLeft about the idea of convicting a defendant under these circumstances.)

I still think it should be investigated and the evidence brought into the light of day. I just don’t think anyone’s going to go to jail for it.

—Matt

…it’ll take a sound military defeat of an increasingly hubristic and warmaking US executive branch and a subsequent Nuremberg redux to call these criminals to account? And we miserable USAers will have to survive such a chaotic scenario to know justice at last?

Maybe I’ll move to Viet Nam if they’ll take whiteys.

First sane person who sees one of these fascists on the street after Jan 2009 do a citizen’s arrest for war crimes. We must get their asses shipped to the Hague, tried and hung. Then and only then will we have justice. If that can’t be done, then make sure history knows that they are criminals, equal in many ways to Hitler and his goons, with many of the same results. Nice legacy you’re building, just like the piece of crap you represent (not the American people, as it should be). Always keep it in your loser’s mind, Mukasey, you will be reviled. There will be a price.