11 Pages Posted: 8 Dec 2009 Last revised: 9 Jan 2010
Date Written: December 8, 2009
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 wrong-headed 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 U.S. law, prosecuting good faith legal advice is (and should be) a violation of those attorneys’ constitutional rights under the U.S. 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.
Keywords: constitutional law, international law
JEL Classification: K33
Suggested Citation: Suggested Citation
Ku, Julian, The Wrongheaded and Dangerous Campaign to Criminalize Good Faith Legal Advice (December 8, 2009). Case Western Reserve Journal of International Law, Vol. 42, p. 449, 2009; Hofstra Univ. Legal Studies Research Paper No. 09-27. Available at SSRN: https://ssrn.com/abstract=1520592