'HARD CASES make bad law." So goes the hoary aphorism taught to generations of law students and invoked by lawyers and judges tempted to do what the heart implores but the rational mind warns - or should warn - against. The debate on whether to prosecute intelligence agents who inflicted what civilized citizens reasonably deem "torture," but what Department of Justice legal memoranda advised was nonetheless lawful, exemplifies the occasional "hard case."
But it 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. The primary objection to such prosecutions is that they would deal a body blow to civil liberties.
The American Civil Liberties Union of Massachusetts, where I am a board member, argues that if we do not prosecute the agents, we would be implicitly accepting "the so-called superior orders defense" correctly rejected by the Nuremberg war crimes tribunal. Indeed, the "torture memos" have a touch of the style of history's more infamous Nazi operatives, where evil niceties of human abuse were discussed with a chilling precision that only bureaucratese could supply. Still, however 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. Steps might be taken short of prosecution. Ethics investigations could be (and indeed are being) conducted of the Department of Justice lawyers who drafted the memos - among them current Berkley law professor John Yoo and sitting federal appellate judge Jay Bybee. Discipline could include disbarment as well as judicial impeachment. But prosecutions could, and likely would, wreak havoc on principles that civil libertarians should seek to protect, not evade.
In his memorable play "A Man for All Seasons," Robert Bolt depicts a fictional but profoundly truthful discussion between Sir Thomas More, the cleric who followed his conscience during the tyrannical reign of King Henry VIII, and William Roper, who undertakes to warn More to take preemptive action against the ambitious Richard Rich. "Arrest him," Roper advises. "For what?" queries More, ever the student of law. "That man's bad," chimes in a courtier. "There is no law against" being bad, counters More. Roper protests that if the laws of England are analogous to trees in a forest, and if the devil were hiding behind a tree, "I'd cut down every law in England" to get him. More responds with one of western literature's most profound explanations of the rule of law in safeguarding liberty. "Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat?"
More's conclusion rings true today: "Yes, I give the Devil benefit of law, for my own safety's sake!"
Harvey Silverglate, a criminal defense and civil liberties lawyer, is the author of the forthcoming "Three Felonies a Day: How the Feds Target the Innocent." 
