The closest Lithwick comes to arguing that Bush’s water-boarding orders were immoral and illegal is making a presumption as to Charles and Gregory Fried’s infallibility on such matters that would make a medieval pope blush. But let’s stipulate that they were both immoral and illegal. Does that make it reasonable to say that the failure to prosecute Bush and his agents “has taken this issue [about the morality of torture] from a legal question to a matter of taste” or mired us all in “the kind of sliding-scale ethical guesswork the rule of law should preclude”?“Eric Holder and Barack Obama have taken pains to tell the American people that water-boarding is illegal torture. So what? That's just their opinion. President Bush disagrees. The persistent failure to hold anyone accountable at any level for years of state-sanctioned abuse speaks louder than their words. It has taken this issue from a legal question to a matter of personal taste. What we choose to define as torture is now just another policy disagreement, like extending the Bush tax cuts or picking a caterer. This is precisely the kind of sliding-scale ethical guesswork the rule of law should preclude.”
That's legal crazy-talk. It’s hard to say whether it’s crazier in the relation it posits between law and morality or the relation it posits between illegality and criminality. Consider each in turn.
Lithwick can’t be serious in suggesting that we need to have our moral convictions underscored by a judicial finding for them to be more than a “matter of personal taste.” Suppose the Supreme Court were to hold that water-boarding under the circumstances in which the Bush administration administered it is legal under American and International law. Do you really think Lithwick would, or should, have any trouble saying that the law, as authoritatively interpreted, is immoral? So she can only be arguing that failure to codify her moral views about water-boarding into law reduces everyone else’s morality to a matter of personal taste. Maybe the Frieds aren’t the only ones who enjoy a presumption of infallibility.
Consider all of the well-established legal principles you have to ignore to get from our stipulation that water-boarding is always and everywhere illegal to Lithwick's thesis that failing to prosecute people in the Bush administration for it eviscerates the rule of law. Just off the top of my head: (1) the separation of powers principle that holds that certain commander-in-chief powers are committed to the sole discretion of the executive branch; (2) the due process principle that any candidate for criminal punishment must have been put on constructive notice of the illegality of his conduct (pertinent here because Bush was acting on the advice of a bunch of highly-credentialed lawyers on which he may have been entitled to rely as a matter of law); (3) the due process maxim that political disagreements shouldn’t be a basis for criminal prosecution; and (4) the principle that justification and excuse can be complete legal defenses to the violation of an otherwise binding legal duty, especially when the violation was reasonably intended to serve an objective as compelling as the prevention of a mass-casualty terrorist attack.
Granted, there’s plenty of room for reasonable disagreement about the meaning and pertinence of each of these principles and their combined impact on the legal evaluation of the Bush administration's interrogation policy. But the idea that prosecutors are eviscerating the rule of law unless they charge ahead as if they didn’t exist is legally preposterous.
Lithwick knows all of this better than I do, but she pretends that none of it matters. Bush hasn't lost his touch.