McCain, Lieberman, Graham come out against prosecutions

The three senators sent President Obama a letter arguing against prosecuting torture memo authors, saying, "legal analysis should [not] be criminalized."

Published April 22, 2009 6:05PM (EDT)

Sen. John McCain, R-Ariz., has gotten the old gang back together, this time to oppose the idea of prosecuting Bush administration officials who drew up legal justifications for torture. Joined by two friends, Sens. Joe Lieberman and Lindsey Graham, McCain sent a letter to President Obama on Wednesday urging him not to take that course of action. And they used the president's own messaging about looking forward rather than backward to do so.

From the letter:

We agree with your position that CIA interrogators, carrying out operations that had been deemed lawful by the Attorney General, should not be the subject of prosecution... We disagree, however, with Administration statements suggesting that the lawyers who provided such counsel may now be open to prosecution. Some of the legal analysis included in the OLC memos released last week was, we believe, deeply flawed. We have also strongly opposed the overly coercive interrogation techniques, including waterboarding, that these memos deemed legal. We do not believe, however, that legal analysis should be criminalized, as proposals to prosecute government lawyers suggest. Moving in such a direction would have a deeply chilling effect on the ability of lawyers in any administration to provide their client -- the U.S. Government -- with their best legal advice. Providing poor legal advice is always undesirable, and the Department of Justice is currently conducting an internal ethics review of the OLC memos, but that is a quite a different matter from making legal advice with which we may disagree into a crime.

Given the great challenges that face our country in dealing with detainees currently held at Guantanamo Bay, Bagram Airfield, and elsewhere, along with detainees that will undoubtedly fall into U.S. custody as the result of future operations, we have every interest in looking forward to solutions, not backward to recriminations. That is why we do not support the idea of a commission that would focus on the mistakes of the past... [W]e look forward to working with you on the panoply of detainee issues, ranging from interrogation standards to the disposition of detainee cases, which will engage our country going forward. In the interest of national security, it is the future, rather than the past, on which we believe America’s gaze must be fixed.

It's worth noting that their concerns about prosecutions are probably moot, as is the advocacy from the left in favor of them. If there's any punishment for the memo authors, it will likely come in the form of professional sanctions arising from the ethics review the senators mention in their letter, not criminal prosecution.

By Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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Joe Lieberman John Mccain R-ariz. Lindsey Graham