Vagueness Is Not a Crime, But It May Suggest Intent to Commit One

Patrick Appel, who is filling in for Andrew Sullivan at The Daily Dish, yesterday suggested that I was accusing John Yoo & Co. in the Bush Justice Department of the “crime” of approving vague CIA interrogation guidelines. Appel writes:

This seems more likely to be raised in defense of the CIA interrogators than against the lawyers. An investigation of the relationship between the OLC and the executive might turn up criminal wrongdoing, but bad legal work isn’t prosecutable on its own.

Of course bad legal work isn’t prosecutable.  And of course CIA interrogators will say they’re not guilty because they were just following vaguely worded guidelines — which sounds an awful lot like “just following orders.” My point is that a prosecutor can’t simply stop his investigation of the over-the-top CIA interrogations there. Not because shoddy lawyering is a crime, but because it’s very likely that the Justice Department lawyers knew better.They knew that the CIA’s instructions were vague but approved them anyway, possibly because they were told by senior Bush officials not to constrain the interrogators. And if the lawyers knew that was likely to lead interrogators to cross the line from “enhanced interrogation” to torture, then the lawyers could themselves be liable for participating in a criminal conspiracy.

All of which is to say that any real investigation of how and why some CIA interrogators broke the law by torturing and even killing detainees in their custody must look at the orders they received — and at who signed off on them.