Eric Holder

I have one nagging question about the release of those "torture memos" and the idea that Obama is going to instruct the Attorney General to prosecute those who advised the Bush Administration that torture was hunky dory.

Just how are you going to prosecute these people?  What would the Justice Department charge them with?  Obviously, direct charges of torture are out, as in with the CIA operatives Obama has "pardoned," but where is the legal statute in the US Code that says the government can charge you for handing out what it deems was bad legal advice? These were legal opinions these lawyers issued.  They weren't law; these memos were their best guess as to what the legality of such an action would be. Again, where's the code law that says that simply probing the legality of torture is verboten?  If this is illegal, anyone who uses WestLaw to research something an administration doesn't like could, conceivably, be in trouble---never mind what people actually do with that information.  Where's the case law that says these people can be prosecuted?  Congress can't just come in, pass a law because it appears one isn't on the books (to me, at least) that simply advocating torture is illegal and prosecute these lawyers under that would also be illegal. Why hasn't this aspect been discussed?  I don't get it.  Perhaps I'm just uneducated on this, but I think that if there was such a statute which covered such things, every other lawyer in the country would be in jail right about now and law school applications would go down tremendously.  These things are usually left to state bar associations, not the legal system unless there is outright fraud and other well-documented illegality involved.  But bad advice?  Not so much.  And let's not leave out the fact that in this specific case the descriptor "bad" is highly subjective.  

That it's Eric Holder---the dude who thought it was kosher to pardon serial tax-evader Marc Rich---who would possibly be pushing the prosecution of said lawyers is, pardon the wording, rich.  Furthermore, witch hunting aside, that Obama would go after the memos' authors is scary.  With this action, his setting a precedent, which would say, "We're going to put a paradigm into place that will make it possible for you to be held accountable for just looking at certain options."  Now, these particular memos were actually used as legal cover; what happens when, at some point in time in the future, some administration looks at all the options, yet refuses to follow through, and uses a different option---perhaps one that was legally kosher and worked.  Can you potentially see a situation where the author of a legal memo fleshing out the details of one of the disregarded options was prosecuted down the road simply for doing their job? That's a whole new level of scary.  This administration would like to snuff out language and ideas it already doesn't like; that it would try to do the same to legal ideas is wholly repugnant to me.  And this is from me, the chick who doesn't really like lawyers all that much.  

This would be the time for some of the devoted brainiac lawyer-Cake Eater readers to chime in, because, really, I'm not getting this one.  AT ALL.  Perhaps I haven't been watching enough punditry over the preceding few days and I missed something vital, but, really, this makes no sense to me.