Silverglate on Letting Torturers Off

Attorney Harvey Silverglate is unfortunately not a reliable source to defend the natural rights of the citizenry from the abuse of government agents. Like most “liberal” attorneys, Silverglate’s views are a mixed bag, even when his intent may be to defend habeas corpus. Incredibly enough, given his critique of the Cambridge, Mass., police in arresting Henry Louis Gates, even as recently as this past April, Silverglate was opposing the prosecution of CIA and other government officials for torture.

[I]t would make very “bad law,” and would create a legal precedent that would haunt our criminal justice system for generations, if we cede to the demands of those calling for torture prosecutions.

Why? Silverglate believes that:

[H]owever disturbing the DOJ torture memos are, they are far from anything seen in the Nazi and Soviet eras. They approve the infliction of terror and pain, but not disfigurement and death.

What is the importance of this distinction? A CIA agent, operating in good faith, could readily consider such DOJ advice to be a binding legal opinion that he could safely follow. And in our legal system, based on an ancient Anglo-Saxon moral and legal tenet incorporated into our own criminal codes, a wrongdoer may be punished only if he knowingly and intentionally committed an act that he believed to be illegal. Given the facts and circumstances—the nation had just withstood the worst terrorist attack in its history and was being led by a president who suddenly declared a full-scale “war on terror”—it is inconceivable that any criminal jury in any American jurisdiction could, would, or even should agree unanimously (which is what it takes to convict) that an agent, acting in accord with DOJ legal advice, is guilty beyond a reasonable doubt (another prerequisite for conviction). These are legal realities often missed by those outside the practice of trial law.

Unless we are prepared to allow the war on terror to inflict further damage on our legal system, we need to step back and ask if perhaps better sense, and cooler heads, should prevail in the face of righteous outrage at our government’s conduct.

In other words, so long as government officials are doing what Silverglate wants done, the rule of law and individual rights are strictly secondary because for Silverglate civil liberties are situational (“the end justifies the means”)—for him, the “war on terror” is apparently just too controversial to be bothered with culpability. For government torturers, he instead advises mere “disbarment as well as judicial impeachment.” Confusing positive law with the natural law tenets of habeas corpus, he even attempts to square his legal positivism with Sir Thomas More’s choice to uphold the natural law against the utilitarianism and moral relativism of Henry VIII.

Hence in the Gates affair, Silverglate’s weighing in now on the matter rings rather hollow in stating that unlike for the victims of CIA renditioning and torture, “the citizen was merely—even if neither kindly nor wisely—exercising his constitutional right when faced with official power. Even if Professor Gates were wearing a ‘F*** You, Cambridge Police’ jacket, the officer would have been obligated to leave the house without its occupant in handcuffs.” Apparently for Silverglate however, when it comes to government torturers, a different standard applies.

David J. Theroux is Founder, President and Chief Executive Officer of the Independent Institute and Publisher of the quarterly journal, The Independent Review.
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