Ramesh, why is the question whether laws were broken “surely the primary question”? There are many instances in which compliance with the law is secondary to some more important societal interest. In my article today, I used the example of the lawyer who knowingly facilitates his client’s trial perjury. That happens a lot, and it’s a crime, but it is virtually never prosecuted. We have made a macro-judgment that the cost of inducing fear among lawyers that actions in representing a client could lead to prosecution would be far greater than the benefit from prosecuting the occasional crooked lawyer. Preserving the attorney/client privilege is given precedence over law-enforcement.
The same analysis obtains for every evidentiary privilege the law recognizes. There are times when the law is broken but in order to prove it we would have to intrude on the relationship between spouses, priest and pentitent, doctor and patient, etc. We refrain from that because, as a society, we’ve decided there are more important interests than seeing even a heinous crime prosecuted.
Enforcement of the law is a significant consideration in any situation where the law has been, or may have been, broken. But it is a measure of how over-lawed we have become when people start thinking of law-enforcement as always the paramount consideration. In fact, it is sometimes not the paramount consideration even when it arguably should be. In a case that could potentially prompt unrest along racial or ethnic lines, for example, prosecutors will apply a higher standard of proof before charging — or even stay their hand entirely. The same is true of alleged police misconduct: unless a case against a police-officer is very compelling, prosecutors have to weigh the benefit of investigating and filing charges against the danger of creating a climate in which the police will take fewer risks and the public will be less safe.
At risk in the interrogations controversy are the potentials of criminalizing our political disputes and paralyzing our intelligence and national security officials into risk-aversion. The ramifications would be ruinous for our society, our system of government, and our security. These concerns are far more weighty than the attorney/client privilege and the other relationships whose protection trumps prosecution in many instances.
Let me add these caveats. I don’t think the issues here are as severable as Ramesh suggests — i.e., first you decide whether laws were broken, then, with a presumption in favor of prosecution, you decide whether some more important consideration outweighs law-enforcement. That’s not the way things usually work in a prosecutor’s office. In fact, to the extent you can, as a practical matter, consider the two issues independently, my experience is the opposite: On most petitions for non-prosecution, we assumed the defendant’s guilt and focused on whether other considerations called for clemency. But practically speaking, the two issues merge. If a case appeared weak, it would naturally become easier to give more weight to the competing considerations.
Finally, I disagree with what I take (perhaps mistakenly) to be Ramesh’s intimation that the argument against investigation is tantamount to a concession that the law was violated. There is nothing at all inconsistent with arguing that the case against the government lawyers and interrogators is preposterous (as I believe it is*), and that it would be a reckless abuse of prosecutorial discretion to bring it. Moreover, even if I agreed that the issues were severable, I’m not sure Ramesh’s suggested order of solving them would yield a just result. If we highlight the emptiness of the case, there are many in the media and the Left who would say: “The government officials have nothing to fear from an investigation, and that is all the more reason to have one and bring closure to this dark chapter in our history.” The public is not going to be moved by the personal unfairness that would entail for those subjected to investigation. It will be moved only by the damage the investigation itself would do to our country.
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* When I say I believe the case is preposterous, I mean the legal case alleging proof beyond a reasonable doubt of torture or war crimes. I do not mean to imply that it is preposterous for us to think long and hard about whether enhanced interrogation techniques should be used. It’s obviously very important that we do that, and I admire the people on both sides who have wrestled with this in good faith.