The Wrongheaded and Dangerous Campaign to Criminalize Good Faith Legal Advice

11 Pages Posted: 8 Dec 2009 Last revised: 9 Jan 2010

Julian Ku

Hofstra University - School of Law

Date Written: December 8, 2009

Abstract

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

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

Julian G. Ku (Contact Author)

Hofstra University - School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-4237 (Phone)
516-463-6264 (Fax)

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