law nor the ICC Statute would permit criminal punishment of the Bush lawyers as accomplices in committing torture.
What is surprising is the willingness of many scholars to entertain, or advocate for, criminal prosecution of the Bush lawyers.
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
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.
Even if, as I believe, any serious attempt to prosecute the Bush lawyers would fail, there are dangerous or at least undesirable consequences to even threatened criminal prosecutions of good faith legal advice.
THE DANGERS OF EVEN UNFOUNDED CRIMINAL PROSECUTION OF THE BUSH LAWYERS
Although superficially analogous, it is hard to see those WWII cases as providing adequate precedent for the prosecution of the Bush lawyers here.
Yet no one who reads their argument that the threat of imminent drowning caused by waterboarding does not reach the level of "prolonged mental harm" which the Bush lawyers
argue is necessary to constitute torture, can doubt that torture is precisely what the CIA had been permitted and encouraged to carry out.
The left has attacked him for his preventive detention policy, for keeping Bush's military tribunals (albeit reformed versions thereof); for refusing to prosecute the Bush lawyers
who drafted the memos reclassifying torture as legal; and for refusing to publish torture photos, because of the fear that they would arouse anti-American sentiment.