The “Good Faith” Dodge: Moving From Torture to Business?

One short phrase in an article bmaz alerted me to yesterday set my blood to boiling.  I fumed about it off and on through the rest of the day and even found myself going back to thinking about it when I should have been drifting off to sleep.

The phrase?  “Good faith”

Here’s the phrase in the context of the article:

The U.S. Justice Department’s stepped up enforcement in the pharmaceutical industry has struck “the fear of God” in executives, a top lawyer at GlaxoSmithKline said today, addressing whether prosecutors have gone too far in building cases rooted in business conduct.


The panel’s moderator, Jonathan Rosen, a white-collar defense partner in the Washington office of Shook, Hardy & Bacon, described what he called a “highly aggressive” enforcement environment.

Rosen posed questions to the panel members to explore the extent to which the government is criminalizing good-faith business decisions.

So, why would the longer phrase “criminalizing good-faith business decisions” set me off so? When I read that phrase, my mind flashed back to April, 2009 and the release of the torture memos.  Here is Eric Holder, as quoted by ABC News:

“Those intelligence community officials who acted reasonably and in good faith and in reliance on Department of Justice opinions are not going to be prosecuted,” he told members of a House Appropriations Subcommittee, reaffirming the White House sentiment. “It would not be fair, in my view, to bring such prosecutions.”

But Holder left open the door to some legal action, saying that though he “will not permit the criminalization of policy differences,” he is responsible as attorney general to enforce the law.

Uh-oh.  Now it’s even worse.  See the additional parallel?  Holder decried the “criminalization of policy differences” at the same time he said he wouldn’t prosecute those who acted in “good faith” on the torture memos.  The “good faith” in the business article above was smack in the middle of “criminalizing” “business decisions”.

Holder didn’t just pull “good faith” and “criminalizing policy differences” out of thin air.  Bush administration officials, led primarily by Dick Cheney, had been trumpeting that defense since before the end of the George W. Bush administration.  In fact, John Perr, at Crooks and Liars, traces the “criminalizing policy differences” defense back to George H.W. Bush when he announced the Iran-Contra pardons.

It was one thing for Eric Holder and Barack Obama to cave on the question of prosecutions for the torturers, but to adopt the convoluted language and reasoning of the Republicans in doing so makes it even worse.  Especially in the case of torture, “good faith” and “criminalizing policy differences” are total garbage.  Holder agreed, in testimony before Congress both during his confirmation and later as the torture memos were being released, that waterboarding is torture.  The UN Convention Against Torture, which has been approved as a treaty by Congress and has the force of law, states categorically:

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.


An order from a superior officer or a public authority may not be invoked as a justification of torture.

So, the fact that the Bush administration chose to implement a policy of torture means that they chose a criminal policy.  Prosecuting those guilty of torture and ordering torture is not criminalizing the policy, it is  prosecuting the crime.  In adopting the twisted language and logic of the Republicans on this issue, Holder and Obama demonstrated the same depraved moral weakness that allowed torture to become official US policy in the first place.

What will be the consequence of this depraved morality and logic moving to the defense of crimes committed by businesses?  The Occupy Wall Street movement that is sweeping the country now is doing a fantastic job of pointing out the collateral damage of “business decisions” run amok.  The continued upward transfer of wealth in our country has moved into outright criminal activity as the greed at the top has grown beyond legal and moral grounds.  Especially in the housing crisis, multiple crimes have been committed as mortgages were pushed onto consumers who had no chance of repaying them and then the mortgages were bundled and sold multiple times into speculative investment vehicles that in the end nearly brought the entire world economy down.

And yet, we now see testing of the admonishment not to “criminalize good faith business decisions”.  No.  Just no.  The current economic crisis that has seen millions of Americans reduced from a healthy middle class existence to mere subsistence came about because there is only one component to “business decisions” and that component is to maximize profit no matter what. Profit is to be maximized, regulations are to be ignored and the law is for sissies has become the operating mantra of Wall Street.

Inadvertently, Barack Obama himself has admitted that there was no “good faith” in the mortgage securities heist.  Here is David Dayen describing an exchange in an Obama press conference on October 6:

For perhaps the first time, President Barack Obama was forced to explain why there have been no prosecutions of Wall Street executives for their fraudulent actions during the run-up to the financial crisis. Asked by Jake Tapper to explain this behavior, Obama basically suggested that most of the actions on Wall Street weren’t illegal but just immoral, and that his Administration worked to re-regulate the financial sector with the Dodd-Frank reform legislation.

“Banks are in the business of making money, and they find loopholes,” the President said. Apparently forging and fabricating documents to prove ownership of homes that are subsequently stolen from borrowers is now a loophole.

If those responsible for the financial crisis acted immorally and relied on “loopholes” to carry out the looting of the economy, then there is no way that such behavior was in “good faith”. Never mind that Obama was simply lying when he said no crimes were committed. However, in his lame attempt to justify why there have been no prosecutions, his admission that good faith was not involved exposed, if only for a moment, the moral depravity of both those who carried out the crimes and those who choose not to prosecute them.

Yes, it is the Obama administration and its Justice Department that has chosen not to prosecute these crimes.  Going back to the original article that set me off:

Deborah Connor, chief of the fraud and public corruption section of the U.S. Attorney’s Office for the District of Columbia, said prosecutors take into account a corporation’s cooperation when it comes time to decide whether to bring charges.

“We decline to prosecute cases every day,” said Connor, the only current assistant U.S. attorney on the panel today. “We have that choice, and we make that choice all the time.”

So, yes, coming soon to a financial criminal near you, more criminals will adopt the claim that they merely acted in “good faith” to carry out “business decisions” and therefore should not be prosecuted.  Obama’s prosecutors then will fall in line and choose, yet again, not to prosecute.

Crime is still crime, but the Holder Justice Department chooses those crimes it wishes to prosecute.  Those choices are informed by a moral depravity dictated by the very criminals who have driven our country’s descent into torture and financial ruin.


35 replies
  1. BoxTurtle says:

    I’ll be the devil here.

    When you have an opinion from the AG of the united states, backed up by a presidental finding, coupled with the orders of your direct superior how in the world do you expect someone to challenge it?

    The lawyers should have known better. Some of the interrigators should have known better. The legal staff at CIA/NSA/JCS should have known better. But it’s unreasonable to expect Sgt. Jones to be an expert on international law.

    That said, Sgt. Jones might not know that waterboarding is torture but he sure should know that beatings are.

    I’d charge the elected/appointed officals, and the lawyers (especially). But I would look at the circumstances down the chain of command and not charge anyone who couldn’t know better.

    If I could charge Gonzo, Addington, Rummy, Cheney and Bush….

    Boxturtle (I also still want a pony)

  2. MadDog says:

    …In fact, John Perr, at Crooks and Liars, traces the “criminalizing policy differences” defense back to George H.W. Bush when he announced the Iran-Contra pardons…

    John Perr doesn’t go back quite far enough. In my view, as far back as Nixon, the Repugs were the very definition of an ongoing criminal enterprise.

    As I’ve commented numerous times before, what the Repugs are saying is the following:

    “Our opponents are criminalizing policy!”

    But the truth of the matter is that it is they who are:

    “Politicizing criminality!”

  3. Jim White says:

    @BoxTurtle: Agree entirely on the priority of first prosecuting those who crafted the torture system and then implemented it. But I disagree with the points about those “who couldn’t know better”. When your job is in detention and/or interrogation, it is your responsibility to know where the line is and not to cross it. Illegal orders can be refused. It starts one down a difficult and dangerous pathway, but it is the right decision.

    And after even just one torture session, those who didn’t know better suddenly had to know through the nightmares that undoubtedly haunt them still.

  4. Jim White says:

    @MadDog: Yeah, the argument probably does go back even further, but at least for today’s rant, it seemed good enough to show it’s been around for over 20 years and yet Holder and Obama seem to be the first high ranking Democrats to endorse it.

  5. WilliamOckham says:

    From the article you linked to:

    Executives, Villarreal said, speaking generally at a panel discussion sponsored by DRI—The Voice of the Defense Bar, are now living “in fear of losing everything” not for personal conduct but for what someone else may have done.

    Let me translate that from the “1 percenter MOTU”-speak into plain English.

    “Hey, my bosses just noticed that even if they follow my advice and create careful firewalls between themselves and the criminal activity that pays for their lifestyle, the law still says they are liable. With all this Occupy stuff going on, they are afraid that you feds might need some trophies to satisfy the rubes. You guys aren’t really gonna make a liar out of me, are you?”

  6. MadDog says:

    @Jim White: It’s all of a piece of Obama’s embrace and promotion of Repug policies, some of which he actually believes in, and with others, an Obama negotiating tactic fantasy that he believes will somehow induce his opponents to meet him half-way. His opponents correctly see it as weakness.

    In reality it is how cowards attempt to placate bullies.

  7. scribe says:

    @Jim White: The short version is that the lower-level folks were trained to not torture. What was done at Gitmo and elsewhere was an elaborate process directed from above (Why else send General Miller to Gitmo-ize Abu Ghraib?) to sieve out those who were moral, obeyed their training and were otherwise law-abiding and promote those who would follow orders despite (or especially because) those orders were to torture. About a year ago, I took the time to transcribe text from an old manual, published by the US Army and entitled “Fundamentals of Military Law”, dated 1974 or thereabouts and intended for the education of officer cadets. Here’s the extended excerpts:

    Humane treatment of noncombatants – The customary law of war and the Geneva Conventions of 1949 establish rules governing treatment of noncombatants, prisoners of war, sick and wounded, and other detained civilians,. These rules are embodied in one general principle – treat all prisoners of war, civilians or other detained personnel, humanely. A soldier can fulfill his military mission, such as the requirement to search, segregate, silence, speed to the rear and safeguard prisoners of war and detainees and still treat these people in a humane manner. Many of these people will be victims of war and some of them may be the enemy soldier imself, but once captured, they are all entitled to the same humane treatment.

    What does it mean to treat someone humanely? If a soldier treats such people as he would lke to be treated were he captured or detained, he would be treating them humanely. Remember that a PW is in the soldier’s protective custody, and he cannot harm him. … Furthermore, certain acts are and shall remain prohibited at any time and in any place whatsoever. These include –

    a. violation to life and person, and, in particular, murder of all kinds mutiliation, cruel treatment and torture;
    b. taking of hostages;
    c. outrages upon personal dignity, particularly humiliating and degrading treatment;
    d. the passing of sentences and the carrying out of execution without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

    Illegal means of interrogation – Suppose a soldier captures a wounded and hungry enemy soldier who he thinks knows the location of enemy units in the area. Can he deny him food and medical treatment until he tells the soldier what he wants to know? The answer is “no.” The Geneva Convention on Prisoners of War states that prisoners are bound to give certain information, (such as name rank, date of birth, and serial number) but cannot be physically or mentally forced to secure other information. If the soldier cannot withhold food and medical care from the prisoner, it follows he cannot torture information out of him in any other way. Here again the Convention is explicit and the language provides –

    No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatsoever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantaged treatment of any kind. (Article 17.)

    In the past, people have violated these rules and have been tried and sentenced for such violations as beating a prisoner or applying electric shocks, dunking his head into a barrel of water, or putting a plastic bag over his head to make him talk. No American soldier can commit these brutal acts, nor permit his fellow soldiers to do so and if he sees anyone commit such an act he must report it. (my emphasis added)

    The humane reasons for prohibiting such acts are clear enough. There is a practical reason as well. Information cannot be obtained from a dead man. Combat experience proves that intelligence secured by torture is unreliable. Furthermore, torture makes it difficult for the trained interrogtor to secure accurate intelligence later, and a trained interrogator can obtain more complete and accurate information through legitimate, skillful questioning. (Emphasis added)That is the practical reason why it is important to send the man suspected of having valuable intelligence back to the detainee collecting point so that a professional interrogator can begin questioning him as quickly as possible. Indeed, the Convention specifically demand that captured war prisoners be promptly evacuated to the rear.

    * * *

    Criminal violations of the Law of War – Acts that violate the law of war may result in a soldier being prosecuted for committing a war crime. Under the Geneva Conventions, the most serious offenses are called grave breaches of the law of war, and include murder, torture, inhumance treatment, and improper destruction of property. They are capital offenses. This means that person who commits a grave breach may be tried and executed. There is no statute of limitations on the prosecution of a war crime. (emphasis added) Nearly all nations have signed the Geneva Conventions, and, in doing so, have agreed to search out, bring to trial, and punish all persons who commit a grave breach of the Conventions. A soldier may be tried and convicted even after he has left the service.

    * * *

    Criminal orders and Individual Responsibility – In all cases, the person who actually commits a crme is subject to punishment,even if he acted pursuant to the orders of a superior. (emphasis added) The man who pulls the trigger, killing a prisoner of war who has just surrendered, cannot excuse his act by claiming that his commander told him ‘to take care of the prisoner’, which he understood to be an order to execute him. Acting under superior orders is not a defense to criminal charges when the order is clearly one to commit a criminal act, as is an order to kill a prisoner of war. While an American soldier must obey promptly all legal orders, he must also disobey an order which requires him to commit a criminal actin violation of the law of war. An order to commit a criminal act is a criminal order, and there is a duty to disobey it. (emphasis added)

    An order to execute a prisoner or detainee is clearly criminal. An order to torture or abuse a prisoner to get him to talk is clearly criminal. An order to torture anyone is clearly criminal. These are orders whose criminal content is very clear. (emphasis added)

    * * *
    Do not presume that an order is illegal, If it is thought to be criminal, it is probably because the order is unclear. … Rather than presume that an unclear order directs the commission of a crime, clarification of that order should be asked of the superior issuingit. All leaders should ake their orders clear and understandable. They should not put their subordinantes in the position where the subordinate may think the superior is giving a criminal order.

    Recall, this manual was published and used in officer training in the 1970s and into the 80s, when all the colonels and generals who were complicit in torture were junior officers receiving that training. They have and had no excuse.

  8. scribe says:

    @WilliamOckham: Actually, it sounds like Big Pharma is complaining that they’ve already given a lot in campaign contributions. And this is O-Co’s way of saying “no, you need to give more.”.

  9. BoxTurtle says:

    @Jim White: I don’t dispute your point.

    Let’s say Sgt. Jones feels the enhanced interrogation session he was just in is torture. He goes to his Captain who shows him the AG letter, the intelligence finding, and the direct Order from the general.

    From the Sgt’s viewpoint, he’s been overruled by the highest authorities he knows. He’s no lawyer, he’s a Sgt. What’s he going to do, take it to the Major? Take it to congress, knowing full well he’s not authorized to discuss classified information? He can’t resign until his enlistment is up.

    It’s not right to prosecute that Sgt. You need to get the AG and the President.

    Boxturtle (I’m not ruling out all lower level prosecutions, just saying I’d look case by case)

  10. Jim White says:

    In thinking about this further, there is one more observation I’d like to make. Note that George H. W. Bush used the “criminalizing” language when he issued pardons for those in Iran-Contra. The George W. Bush administration, as I mentioned in the post, used Cheney to spout this language long before Obama was sworn in. And yet W. did not issue pardons for those involved in torture, even though there was much public speculation that he would. It seems likely that the W. administration already knew, before they were gone, that they faced no likely consequences from Obama. That is the only way to explain the failure to issue torture pardons. (Well, that and the UNCAT language expressly prohibiting pardons, but it prohibited the torture, too.)

  11. b2020 says:

    Holder is violating the Torture Convention by his refusal to investigate and prosecute.

    All in good faith.

  12. MaryCh says:

    Respondeat Superior is like the tax code – it needs ongoing defense from powerful folks who find it cramps their style.

  13. JohnLopresti says:

    I sped read the article in the paper without shedding an obligatory crocodile tear for executives at glaxosmithkline. However, I note a parallel between the semantic newspeak of this new ‘goodfaith’ and the approximately similar whitecollar cases surrounding both the Abramoff cliques and the get-shorty Enron shell corporation within an offshore shell corporation CPA scam in which one person ultimately received a plenary indulgence and was short shriven by Scotus, Mr. Skilling; the lubricious participants’ barristers and thinktankers now have a newspeak revisionist definition of “honest services”, too. cf. Deniston writing for Goldstein’s site in re skilling v us, and Huvelle in re us v ring. Back in 2009 when Mauro still was writing outisde of nlj’s paywall, he wrote that evaluation of the cluster of similar cases. I dont know how Blago’s cases made out, but there was one tactic which followed on the skilling decision’s newspeak precedent, discussed in passing there.

    Note on bytesize of files, the only Adobe document linked is <100kb, and the other links all are short articles.

  14. pdaly says:

    Good read.

    But even John Yoo helpfully pointed out that “good faith” is a jury determination of the facts and not a pass phrase (though it has become that, too) that is uttered by the “doer” to magically stay out of trouble.

  15. bmaz says:

    Okay, I have promised one and all (well Marcy and Bob Schacht) that I would have Trash up for the World Series Game 7 tonight. So it will be!

  16. Dan says:

    Surprised no one mentioned this topic (unaccountability for the powerful) is the subject of Glenn Greenwald’s new book; released yesterday.

    With Liberty and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful.

  17. Jim Hicks says:

    @BoxTurtle: That said, Sgt. Jones might not know that waterboarding is torture but he sure should know that beatings are.
    For sure when you beat them to DEATH!

  18. Teddy Partridge says:

    Of course, we have to take the word of the “good faith” actors, in both realms, that they acted in “good faith;” what with all the looking-forward-not-backward it’s hard for anyone else to make an objective judgment.

  19. Jim White says:

    @Dan: Thanks. I had wanted to work Glenn’s book in, but I haven’t started reading it yet, and the post got pretty long as it was, so I decided not to take a chance on misstating something about it.

  20. earlofhuntingdon says:

    When a top lawyer for a mega-corporation describes the government’s chief law enforcement agency’s mild step toward, maybe, kinda, perhaps, possibly enforcing the law as “putting the fear of God” into his client, it is the Br’er Rabbit asking not to be thrown into the briar patch. Real fear, as opposed to feigned fear, comes via larger-scale media campaigns and litigation. But we haven’t seen the government attempt credible enforcement actions against myxomatosis-vulnerable clients since Glenn Close raided Michael Douglas’ rabbit hutch.

  21. earlofhuntingdon says:

    The phrase “good faith” hasn’t been so mistreated since it was first incorporated into the Delaware Code as a defense to directors’ liability for bad business decisions.

  22. scribe says:

    Lest we forget, Kyle Sampson and Monica Goodling captured on email talking (not necessarily with each other) about how to good faith (until the term was up) a request for one form of information or another.

  23. earlofhuntingdon says:

    @scribe: A non-traditional use of “good faith” as a verb, meaning to make the heinous or criminal appear to be valid, legitimate, or at least open to reasonable disagreement. It’s an Orwellian process – giving plausible cover to the evil, the unsound, the illegal, the illegitimate – that disguises the corruption of government.

  24. P J Evans says:

    @Jim White:
    Interrogators are supposed to know that stuff. It’s part of their training. Or it’s supposed to be. (I know someone who did both training and interrogation. He failed people who thought that it was okay to torture.)

  25. klynn says:

    Great post EW.

    It would be worthwhile to rewrite (as a play) the Nuremberg Trials using this “good faith” argument and show a change in the rulings.

  26. fatster says:

    Here’s a former Guantanamo guard on the things he did and saw done to detainees. Summary:

    “He thinks the detention center should be closed. “I think someone would be naive to say that everybody that ever stepped foot in Guantanamo was innocent,” Neely said. We know they are not, but “the fact is there is a better way to do it … you can’t just throw the principles and the values of the country and the law of the land out the window because it benefits you.” Detaining innocent people and depriving them of their due process is “a significant black eye on the Unites States,” Neely added.”

    He’s speaking out despite having signed a document saying he would not.

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