Rahm Emanuel is wrong and prosecution of those directing or justifying illegal torture must proceed.

The President's stated reason for exempting "line level" CIA agents who followed orders to torture is that those agents "in good faith" followed orders that they were told by their superiors were legal. There is certainly plenty of room to argue that this is a perversion of the rule of law and that such a "good faith" assertion is to be raised in mitigation, not exoneration; certainly that is the import of Article 7 of the Nuremburg Articles, which addresses this "I vas only following ze orders" defense by saying this is not a defense against a criminal charge but may be considered in sentencing.

But even if one accepts, arguendo, as an exercise of "prosecutorial discretion" a decision that those who "followed orders" must be presumed to have done so in "good faith" [oh, and as has been pointed out, in many respects the torture activities described in these recent memos reflect line level actions in excess even of those "authorized" by the secret legal memos, where is the "good faith" in that?] that principle absolutely cannot be applied to those fashioning, justifying and giving those orders. Period.

The memos in question were SECRET. They were developed in secret and, as is now plain, the legal reasoning was egregiously flawed (even Rumsfelf himself "rescinded" some of them and the Bush DOJ itself repudiated the remainder in January of this year), to the point of Bush's own DOJ staff recommending referral of the lawyers involved to State Bar ethics committees. It is equally clear, as Dick Cheney himself has proudly announced to Fox News, that when the Bush Administration sat down with "congressional leaders" to discuss the legality of the torture program, the congressional leaders were not even allowed to have their lawyers in the room and the legal memoranda were not even displayed to the congresspersons -- just, apparently, Cheney and Addington telling Pelosi not to worry her pretty little head about it. Congress bought into that, apparently, but that doesn't make the deception itself "good faith".

The "debate" is not, as Michael Hayden tried to spin it on Fox today, whether "the torture worked". Why don't people like Hayden get the fact that there are laws in existence by which the United States has assured the civilized world that we agree that torture is illegal and is to be punished by law? Why do people like Hayden think they get to go on TV and justify their actions as "seemed like a good idea at the time" when the law ALREADY says they can't do that? Hayden admitted to engaging in war crimes on TV this morning, that's what the news from this press conference is.

Whether the people who fabricated a set of secret legal opinions and bullied underlings into treating them as "law" were acting in "good faith" is a wholly different question from whether a line-level employee followed directions.

There must be prosecutions of those involved in the formulation of these "policies" and their conspiracy to overthrow the Constitution by their secret manipulations and falsehoods. They say they "relied upon legal opinions?" Fine. That's a waiver of attorney-client privilege, not to mention the clear applicability of the "crime or fraud exception" to the attorney-client privilege. Yoo, Bybee, Addington, all plainly are war criminals and the substance of their malevolent legal analyses is so bereft of competence and adherence to establish Constitutional doctrine as to constitute treason, let alone lesser crimes, and they did it at somebody's direction.... Muskasey's harboring of these secret opinions was direct participation in the illegal scheme of the Bush Administration. Cheney and Bush -- and Ashcroft and Rice -- are at risk as well.

There is plainly no way at all that the "presumption of good faith" which the President is affording line torturers can be applied to those who formulated this program in secret and manipulated in a pathetically obvious effort to avoid its detection and exposure. Neither America nor the civilized world deserve to be demeaned by a refusal to prosecute these crimes.

It's not about "retribution". It's about "vindication".

And Mukasey thinks the torture memos shouldn't have been released, which WSJ thinks merits op-ed space.

But it is fun to reflect on for a bit.