Joseph Lavitt


At the outset of the administration of President Barack Obama, there is intense debate about whether to prosecute members of the former administration of President George W. Bush. This Article first considers whether officers who were in command and control of the Executive Branch of the government of the United States during the Bush administration can be excused from criminal responsibility on charges of illegal torture, based on their claim to have acted in good faith reliance upon the advice of attorneys employed by the Department of Justice. Focus then turns to the accountability, if any, of those attorneys in the Justice Department's Office of Legal Counsel ("OLC") who opined that so-called enhanced interrogation of persons in the custody of the United States was legally permissible. Finally, the doctrine of the unitary executive is examined through the prism of the conclusions about legal responsibility reached on the first two questions. The projection of a "leadership principle" by Jon Choon Yoo and others into modern American scholarship and governance became the basis for putative criminality during the Bush administration. That principle, as conceived by its proponents, is patently repugnant to American constitutional republicanism. Until a court imposes punishment for criminal wrongs over a defense based upon it, the exercise of presidential authority in times of crises in the United States will be likely to repeat the terrible mistakes of the all too recent past.

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