The only surprising thing about hearing that Law & Order was going to take on the Bush administration over “torture” is the realization that Law & Order is still on the air. This car-wreck of a series has been bouncing around NBC’s schedule since the first Bush administration doing the impossible – making lawyers look even worse. Thanks, guys.
Law & Order’s mysteries are as unpredictable as where the sun will come up tomorrow morning. In a typical episode, when the cops arrest a gang member you can safely bet the climatic trial denouement will reveal the real killer to be either the wealthy corporate executive, the ambitious conservative politician or the hypocritical Christian preacher. You know, kind of like in real life.
So now Law & Order is taking on the new Bush administration and, by extension, all of those who have fought so hard to keep our country safe from terrorism since 9/11. I’m in awe at these iconoclastic artists’ bravery and courage in forthrightly expressing exactly the same views held by all of their friends and associates. Taking risky, edgy stands like this can put you in physical danger – for instance, you might be hugged to death by your fellow-traveling industry peers.
Legally, the whole theme of the episode – that a former government lawyer’s legal opinions on what constituted “torture” under various statutes and treaties can give rise to criminal liability in a state court case – is a joke. Little things like the rules of evidence, basic criminal procedure, the Supremacy Clause, and several dozen other rules, statutes, and Constitutional doctrines would never allow this “case” to exist in the first place. But the more important point is the bigger issue – the whole notion of prosecuting lawyers for their legal opinions is unbelievably short-sighted and dangerous to our democracy.
The episode makes a great deal of hay from the wicked Bush lawyer’s attempts to determine exactly what conduct is permitted and not permitted under the potentially applicable legal authority – which the writers refer to “[a] surgical parsing of words to draw hair-splitting distinctions.”
Uh, guys – after 20 years of shows, you should probably know that drawing close distinctions is exactly what lawyers are supposed to do. But now, for cheap political advantage, your bright idea is to persecute attorneys who get the answers to tough legal questions “wrong” – at least, wrong in your opinion. And this is not some clear-cut, un-nuanced (and I thought you leftists loved nuance) issue. The application of the Geneva Conventions and US law to the fact pattern presented by war on terror detainees is far from crystal clear – which is why lawyers were analyzing the issue in the first place!
Here’s the rub. Parties change, but principles remain the same. If you think it’s a really smart idea to prosecute conservative lawyers when you believe they get the wrong answer, think about what happens to the liberal government lawyer who opines that the law forbids an aggressive interrogation of a terror suspect after that failure to perform an aggressive interrogation keeps us from preventing another 9/11 – or worse. Then think about what happens when the Republicans come back into power in the aftermath of that disaster and decide to prosecute that liberal attorney for manslaughter resulting from his negligence in offering that legal opinion. Heck, maybe some members of the prior Democratic administration ought to be prosecuted too for good measure – isn’t that the logic you would find regarding Bush administration officials on the Huffington Post?
Sound ridiculous? Yeah, I would have thought so too, until liberals started about talking about prosecuting conservative lawyers for their legal opinions and maybe even some of our past political leaders as well. Like I said, parties change but the principle of prosecuting your predecessors, if we are foolish enough to let it become established, will not. If you want to tear this nation apart, it would be hard to think of a more effective way to do it.
Law & Order has once again managed to rip a critical story from the headlines, but it’s not the story its writers think. It is the story of one of the stupidest and scariest trends in American politics today – the criminalization of political opposition. And, for the sake of our country, we should hope that this lousy episode of a lousy TV show is the last we hear of it.