Case Western Reserve Journal of International Law
I argue in this brief essay that the increasingly fervent insistence on criminal punishment of the Bush administration lawyers for their legal advice on interrogation policy is both wrong-headed and dangerous. It is wrongheaded because the insistence on criminal prosecution of attorneys based solely upon their good faith interpretation of the law is highly unlikely to succeed as a matter of both U.S. and international law. It is dangerous because, at least with respect to US. law, prosecuting good faith legal advice is (and should be) a violation of those attorneys' constitutional rights under the US. Constitution's First Amendment and broader norms of free expression. Insisting on prosecuting lawyers for their good-faith legal advice, or even threatening prosecution, will chill the ability of future government lawyers to give legal advice on complex and important questions implicating U.S. national security.
The Wrongheaded and Dangerous Campaign to Criminalize Good Faith Legal Advice, 42 Case W. Res. J. Int'l L. 449
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