Paul Krugman: Living in the Sprawl: Noted for July 27, 2013
Noted for July 27, 2013

William Black: Is it Legal Malpractice to Fail to Get Holder to Promise not to Torture Your Client?: Noted for July 27, 2013

William Black: Is it Legal Malpractice to Fail to Get Holder to Promise not to Torture Your Client?

One of the things I never expected to read was a promise by any United States official that a potential defendant in a criminal prosecution by our federal courts “will not be tortured”: http://www.nytimes.com/2013/07/27/world/europe/edward-snowden.html The idea that the Attorney General of the United States of America would send such a letter to the representative of a foreign government, particularly Russia under the leadership of a former KGB official, was so preposterous that I thought the first news report I read about Attorney General Holder’s letter concerning Edward Snowden was satire. The joke, however, was on me.

The Obama and Bush administrations have so disgraced the reputation of the United States’ criminal justice system that we are forced to promise KGB alums that we will not torture our own citizens if Russia extradites them for prosecution….

[Perhaps] Holder is under so much pressure from the intelligence “community” to punish Snowden that he thought he was being clever by promising Russia that we would not torture our own citizens--in this particular case. Holder phrased his explanation in a manner that suggests he was trying to be clever: “Torture is unlawful in the United States.” “Gitmo,” of course, is not “in the United States.” The locations of the many secret prisons the U.S. established in other nations were chosen so that we could torture suspects. The infamous historical parallel for this is that it was unlawful to hold slaves in England--but England could dominate the Atlantic slave trade and hold millions of slaves in the Caribbean islands because slavery was unlawful only “in” England under English law.

More subtly, note that Holder says that torture is “unlawful” – not “illegal.” An act that is merely “unlawful” cannot be prosecuted as a crime. It may provide the basis for a civil suit. An “illegal” act can be prosecuted…. Holder, therefore, claims that torture is merely “unlawful” (and only if inflicted “in the United States”). Torture, of course, is illegal….

Holder’s letter promising the Russians that we would not torture Snowden also raises a practical question for the defense bar. Is it malpractice for defense counsel not to demand written assurances from the U.S. attorney general in any extradition case that the United States will not torture the suspect--in any nation? Do defense lawyers need to extract a written promise that the suspect will not be assassinated by the U.S. prior to trial? How about a promise that the United States will not hold the suspect’s family hostage (or worse) if they agree to waive extradition?…

When a nation engages in torture the consequences for its honor are long-standing and lead to a series of disgraces.

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