President Obama's statement released this afternoon by the New York Times that his administration would not be prosecuting CIA operatives responsible for "waterboarding" prisoners is a decision that is both legally and morally reprehensible.
Obama's statement used the term "good faith" respecting the individuals involved in the context of his decision not to prosecute. To anyone who studied law the term good faith in this context is a contortion of legal terminology. Its use in this fact situation would be rejected scornfully by any reasonable judge hearing this fractured lexicon.
The term good faith is generally applied in a civil context pertaining to performance of duty in a contractual setting. In making a determination on services rendered in a contract the issue of good faith is applied in the context of the individual performing under the contract.
How does good faith apply in this context? It never passed muster and almost assuredly was never used in the cases of Japanese officers who went to the gallows following World War Two for waterboarding.
In the context in which Obama misapplied the term good faith it could be said that Hitler attacked Poland and occupied France in good faith. Killers could be said to have carried out their acts in what they construed to be good faith. In this context the term has no meaning. Good faith in such a criminal law context is like beauty in that it resides in the eyes of the beholders.
What we do know is that this kind of torture is unlawful in the context of the United States Constitution along with the UN Charter and the Geneva Code as well as the standards applied at the Nuremberg Trials, where the chief American prosecutor was Robert Jackson, a former attorney general and at the time of the trial chief justice of the United States Supreme Court.
It was President Harry Truman who sent Robert Jackson to Nuremberg with the instruction that a legal standard should be established in international law and that those who carried out the plan in chief of Nazi Fuhrer Adolf Hitler should be prosecuted to the full extent of international law.
Hermann Goering and his fellow defendants of the Third Reich essentially used a good faith defense. They were carrying out orders conveyed by the head of their government on behalf of their country.
The concurrent question emanating from a decision that flouts laws foreign and domestic is what can we expect to happen next?
If such conspicuous flouters of the law in an egregious torture context are not brought to trial, does that mean that we can expect more of the same in Afghanistan and other places on the globe where American interests are said to be jeopardized in the eyes and minds of ruling powers?
Meanwhile all we need to do is turn on a television set to view "law and order" in motion as a petty criminal stealing some items from a convenience store is quickly apprehended.
The current standard of "good faith" along with its foundational underpinnings conjures up the statement of legal scholar Thurman Arnold, who worked in the justice department under Franklin Delano Roosevelt.
With respect to enforcing certain "morality laws" states had on the books for years and were flouted with impunity, Arnold said something to the effect that we keep them on the books to make us feel moral while engaging in conduct we enjoy in privacy.
In short, we are talking about having it both ways, albeit hypocrisy.
Call it "good faith"!
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