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  Prosecute the Torturers
by Jacob G. Hornberger
It’s interesting to see conservatives calling for the U.S. Attorney General to ignore evidence that people have knowingly violated federal criminal laws against torture. Aren’t conservatives usually the law-and-order crowd in this country? The argument that conservatives are making for ignoring violations of federal criminal law seems to be that because the suspected criminals presumably had good intentions — e.g., protecting Americans from terrorism — federal prosecutors should refrain from prosecuting them for violating the law. Yet, the simple fact remains — the law is the law. If the federal criminal statutes against torture provided that good intentions were a defense to criminal prosecution, that would be one thing. But they don’t. Therefore, the Attorney General’s duty is clear: Investigate and prosecute. Otherwise, if the law isn’t going to be enforced, then what’s the point of having the law? As a facade? Moreover, if government officials are free to violate criminal laws whenever they have good intentions, then how is that any different from how government officials operate in such countries as Burma? What about the claim that the suspected criminals saved American lives with the information they allegedly acquired through their violation of the torture statutes? Again, the law does not provide that that’s a defense to prosecution. Instead, that’s a matter to be considered in mitigation of punishment. For example, at sentencing the convicted torturer can argue to the judge that he broke the law because he felt that by doing so, he could save lives of Americans. He could show that his actions actually did save lives. The judge could then take such factors into consideration when imposing punishment. But what the prosecutor cannot rightfully do is simply ignore violations of federal criminal law when faced with clear evidence that people have violated it, even if they claim to be well-motivated when they committed the violations. Interestingly, the conservative law-and-order crowd, as well as the Attorney General himself and his team of federal prosecutors, seem to have a good understanding of these principles when it comes to violations of other federal criminal statutes, such as drug laws. Suppose the DEA arrests a person here in Virginia in possession of marijuana. The person states, “I have cancer and this marijuana is alleviating the effects of my chemotherapy treatment.” What will be the response of federal prosecutors? Will they ignore the drug laws based on the good motives of the drug-law violator? Of course not. They will say: “The law is the law and you have violated it. Explain your motives to the judge before he sentences you.” Or suppose someone is caught selling a load of cocaine to an undercover DEA agent. The person says, “I need the money to pay for my mother’s heart operation. If she doesn’t have the operation, she’ll die.” Will the feds let him off the hook with respect to prosecution? Of course not. Since the drug law does not provide that his good intentions constitute a defense to prosecution, they will prosecute him for violating the drug laws. They will tell him that he’s free to mention his motive at sentencing. The same holds true for those who have violated laws against torture. With respect to prosecution, it makes no difference that the defendants allegedly were well-motivated or that their actions allegedly produced beneficial results. If they have violated the law, they need to be prosecuted for it. To permit them to escape prosecution makes a mockery of the law. They can tell their story to the judge at sentencing.
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