White House Chief of Staff Rahm Emanuel explains that he and the president think that those who devised and implemented torture techniques under the Bush Administration should not be prosecuted. What’s interesting, however, is the argument Emanuel makes: rather than simply claiming that the people involved are safe from prosecution because what they were doing was — according to some people, at least — legal at the time, he claims that they are immune because they were operating in “good faith.”
This is reminiscent of the good faith exception to the exclusionary rule of the Fourth Amendment: normally any evidence gathered without an appropriate warrant is excluded from court, but if the police were operating in “good faith,” the evidence can be admitted and used against you. Of course, it would be nearly impossible to prove that the police were not acting in good faith — we can’t see into their heads, after all — so this is essentially the biggest loophole ever for ignoring the Fourth Amendment.
The possibility that other good faith exceptions will be established, especially by nothing more than a presidential statement like the one in question, is therefore rather frightening.Published in