Indeed, in this short essay, I will argue that this increasingly fervent insistence on criminal punishment of the Bush lawyers for their legal advice is both wrong-headed and dangerous.
THE EXTREMELY WEAK CASE FOR PROSECUTING THE BUSH LAWYERS
What is surprising is the willingness of many scholars to entertain, or advocate for, criminal prosecution of the Bush lawyers.
11) There is no evidence that the Bush lawyers in any way participated in the alleged interrogations, so there can be no question of actually punishing them directly under the statute or international treaties prohibiting torture.
law nor the ICC Statute would permit criminal punishment of the Bush lawyers as accomplices in committing torture.
Therefore, in order to be held liable for aiding and abetting the torture under federal law, the Bush lawyers must have intended, through their legal advice, to purposefully bring about "severe physical or mental pain" as defined in the statute.
In other words, under the view of the Bush lawyers, none of the techniques they approved qualified as "severe physical or mental pain" within the meaning of the anti-torture statute.
Although superficially analogous, it is hard to see those WWII cases as providing adequate precedent for the prosecution of the Bush lawyers here.