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Talk of prosecuting Bush legal eagles who wrote memoranda that provided legal justification for torture is swirling around the blogosphere and the traditional media. The Wall Street Journal legal blog argues that bad advice is bad, of course, but not criminal. Traditionally organizations have relied on the advice of legal counsel, but acting on the advice of counsel is not a defense to criminal liability. To leap from criminal culpability of the actor to criminal culpability of the attorney whom the actor relied upon to conform his conduct is troubling to the legal community and for good reason. However, these are extraordinary circumstances.
The Uniform Code of Military Justice (UCMJ) clearly states that it is the obligation of those subject to the code to disobey unlawful orders. This legal concept was made explicit to unambiguously reject the Nuremberg Defense. The Nuremberg Defense is essentially that the defendant is not liable for his acts because he was following orders he was legally bound follow. This is relevant now because military personnel relied upon the advice of the President's counsel and conducted interrogations that violated the Geneva Convention and the UCMJ. (Any argument that water boarding, stress positions, sleep deprivation, sexual humiliation, striking repeatedly, but without the intent to cause substantial bodily harm do not violate those agreements is too specious to warrant a serious reply.) Obama has assured the Central Intelligence Community (CIA) that those who acted in reliance of the so-called Torture Memos will not be prosecuted. This stance has been harshly criticized by the left. On its face, Obama's position is essentially a redux of the Nuremberg Defense. It may be politically attractive and practical in the context of the continued threat of Al Qaeda and other terrorist organizations to take this stance, but it overlooks one of the most important lessons of the Nuremberg Trials: each individual must be held accountable for his actions if we are to be free from state sanctioned atrocities against humanity.
So, what do we do with the lawyers? The front line actors are allowed by the Geneva Conventions to use the defense of following orders to mitigate liability, but not absolve it. Arguably, if the documents created by the lawyers were used as a basis to commit crimes, their bar standing may be in jeopardy (though politically within the Bar, that result is extremely unlikely). I doubt they can be prosecuted for bad advice unless they knowingly issued the memoranda in question with the intention of causing others to commit violations of the law. Since it seems the primary purpose of the memos was to explain how the torture techniques were not illegal, criminal prosecution seems unlikely.
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If one is in the position of giving direction and or opinions on the law I can understand how they might not be held responsible for the actions of those to whom they gave the direction/opinion. (Burn me once/burn me twicekind of thing, should any of them ever want to get NEAR the white houseagain.) However, I am having some trouble with making law. I know that it is more than difficult to finger the blame for a whole administrations miscreant behavior, and I do understand that "W" stood on a platform of upright,christian, pure make me sick to mystomach American values. But the reality is that they parsed out those parts of our founding documents that they thought would best serve them and threw the rest away. In doing so, opinions were given that essentially made rules to be written for others to follow. Not orders from superiors. Rules for how to run the ship. In this respect, are we not right in saying that the rule makers are responsible if we find that the rules are illegal?
The possibility of criminal prosecution for legal opinions is troubling to me for a number of reasons. I’ll get to them in a second, but first I think you steal a couple of bases in setting up this discussion. You assume that the interrogation techniques at issue violated the Geneva conventions and the UCMJ and also, presumably, the federal anti-torture law which codifies the UN Convention Against Torture (CAT) from which any US criminal liability would have to arise. I don’t think that is such a safe assumption. At the time these opinions were written, there was every reason to believe that the Geneva Conventions did not apply to non-state actors such as members of al Qaeda. Arguments could be made based on the plain language of the conventions either way (and the stronger argument was that they did not apply). There was no US Supreme court decision stating the Conventions did apply at the time the memos were written.
You go on to say that “Any argument that water boarding, stress positions, sleep deprivation, sexual humiliation, striking repeatedly, but without the intent to cause substantial bodily harm do not violate those agreements is too specious to warrant a serious reply.” If you really believe this, then apparently the Third Circuit Court of Appeals, the current Obama DOJ, and the European Court of Human Rights all do not warrant serious reply. In Ireland v. United Kingdom, the European Court of Human Rights declared that five techniques (stress positions, hooding, loud noise, sleep deprivation, and food/drink deprivation) were not torture under the European Convention on Human Rights. They found them degrading and therefore still in violation of the Conventions, but they did not rise to the level of torture. If you were writing a memo on what constitutes “torture”, looking to the European Court of Human Rights for guidance is not really the same as, say, looking at the practices of the Cuban government.
The Ireland v United Kingdom decision did not mention water boarding, but Ted Kennedy doesn’t think water boarding falls under the definition of “torture” as far as current US law is concerned. In 2006 Kennedy offered an amendment to the Military Commissions Act that would have made water boarding a violation of Common Article 3 of the Geneva Conventions and thereby torture. The amendment didn’t pass, but if it was so clear at the time that water boarding was torture, why was the amendment even necessary?
The argument that torture under US law is a specific intent crime (that it must be done with the intent to cause bodily harm or pain and suffering) is troublesome to a lot of people (me included), but the argument is not specious. In fact, not only was that interpretation adopted by the Third Circuit in an en banc hearing by a 10-3 majority (Pierre v. Attorney General) it is currently being argued in the Sixth Circuit by the Obama DOJ in Demjanjuk v. Holder. Maybe the law needs to be changed to drop the intent requirement for torture, but as the law currently stands it is a requirement. You can’t accuse Bybee and Yoo of not just poor legal reasoning, but actual criminal liability for accurately stating the law at the time they wrote the memos.
It appears that this debate is going to have a very clever political solution. Bybee will be referred to the bars of DC and Nevada (Yoo is a member of the Pennsylvania bar which has a four year limitation for such referrals, and his work was done in 2002-03). Those bars will review the matter and, short of an email saying “I know these things actually are torture, but I’m going to say they aren’t”, will decline to find Bybee in violation of the cannons of ethics. The Obama DOJ will then hold a press conference saying “Well, we certainly can’t charge them for criminal violations when what they did wasn’t even an ethical violation.” People on the right will be angry that the matter was even considered, people on the left will be angry that Bybee and Yoo aren’t facing charges, but late night talk show hosts will be happy with hours of new material for lawyer jokes (beating a man no ethical violation – yuk, yuk, yuk).
Ultimately, this may actually be the best solution. The law as it currently stands is troubling to many civil libertarians. It needs to be amended to clearly and definitively say these things are allowed during interrogations and these things are not. But what would make a bad situation worse would be to set the precedent of criminal investigations and prosecutions of a previous administration’s actions that were colorable under the law at the time. Had this been standard practice in 2001, off the top of my head controversial actions by former AG Janet Reno (The Branch Davidians, Elian Gonzales) and current AG Eric Holder (his role in securing presidential pardons for Marc Rich and for sixteen members of the terrorist group BPA, both supposedly to secure help for Hilary Clinton’s senate run) would have likely found them in the dock facing jail time. Were their actions criminal? No, but who cares?
Who would go to work for the government if they knew that their actions would not just later be questioned or criticized but actually prosecuted? Well, they wouldn’t be prosecuted if your party never fell out of power … . And that is the main reason prosecuting Bybee and Yoo for their legal opinions would be so troubling. It would greatly increase the incentive to ensure your party never lost an election. If you thought there were shady election practices now, imagine what they would look like if people were facing jail time for losing.
In my opinion, anytime an individual takes the oath to serve the constitution, the individual creates a relationship with that constitution deeper than the average citizen.
The attorneys involved in this matter took the oath to pursue a career in legal practice. The attorneys knew the constitution well enough in its present state as well as its historical roots to put out their respective opinions relating to torture.
Accountability is crucial because it inspires maturity in the eyes of critcism regardless of the viewpoint of the criticism.
This is not to say that notions such as criminal sanctions is per se appropriate. Crucifying these attorneys as quickly as their legal penmanship defined torture is uncivilized constitutionalism.
But the attorneys must face the public who they swore to protect by taking their oath and explain to them their logical journey from being asked a question about torture and answering it in the manner that they did. This process I label "constitutional manners".
These types of manners promote constitutional values on globally.
People without such manners are not fit to care for the constitution because the oath expressly disallows it.
You are assuming that the legal opinions offered by Bybee and Yoo not only misstated US law on what constitutes torture, but did so knowingly. I don’t think this is accurate on either count. Since my initial posting, the 6th Circuit has ruled in Demjanjuk v. Holder against John Demjanjuk and he has been deported to Germany to stand trial on charges arising from his time as a guard for the SS at the Treblinka camp in Poland. Demjanjuk argued that due to his poor health, deportation and trial amounted to torture. The DOJ argued, and the 6th Circuit held, that deporting him was not torture as there was no intent to cause bodily harm or pain and suffering.
This was the same reasoning the 3rd Circuit used in Pierre v. Attorney General to deny Paul Pierre’s request he not be extradited to his native Haiti after serving a portion of his prison sentence in the US. Pierre argued that because of his medical condition, deporting him to Haiti to serve out the remainder of his sentence would amount to torture as Haitian prisons lacked the facilities necessary to care for him. But the court held:
“that Pierre is not entitled to relief under the CAT [Convention Against Torture] because he is unable to sustain his burden of proof to show that, by imprisoning him, the Haitian authorities have the specific intent to torture him. Accordingly, we will deny his petition.”
Most crimes are considered general intent crimes where people are presumed to intend the natural and logical consequences of their actions. Not so with torture. Under current US law, torture is a specific intent crime. Without the intention to cause bodily harm or pain and suffering, water boarding, stress positions, sleep depravation, etc. are not “torture” in the legal sense of the word.
Now, this discussion of course has nothing to do with what should be the position of US law on torture. That is a separate debate. But you can’t punish a lawyer for giving a legal opinion where he accurately stated the law. And you can’t later change the law then retroactively punish a previously accurate statement of the law.
“In my opinion, anytime an individual takes the oath to serve the constitution, the individual creates a relationship with that constitution deeper than the average citizen.”
You really do not want to go down this road. Off the top of my head, and just limiting it to presidents (and leaving out the obvious ones), this standard would be condemning: John Adams (Alien and Sedition Acts); Jefferson (Louisiana Purchase); Lincoln (suspension of habeas corpus); Wilson (bringing Jim Crow segregation to the federal government); FDR (internment of US citizens of Japanese descent and just about everything he did relating to the New Deal); Eisenhower (attempted nationalization of the steel industry); JFK (backed invasion of Cuba); Clinton (troops into the Balkans without congressional approval); Obama (thinks torture is a specific intent crime just like Bybee and Yoo). I’m guessing that the only president that didn’t “violate his oath” in one way or another was William Henry Harrison.
There exists the utilitarian in everyone of us that says "yes, they obviously tortured with intent, and the lawyers knew what they were doing,but isnt it better to torture a few inorder to save countless lives." lol... well thats my opinion
Waterboarding predates the Inquisition. During the Vietnam War it was declared illegal by the US Military. Even before that, US service men were prosecuted for waterboarding prisoners in the Phillipines. Japanese soldiers were tried and hanged for war crimes for waterboarding civilians and American prisoners of war during WWII. Until recently there has been a general consensus that waterboarding is torture. I think that the euphemism of enhanced interrogation techniques have done what they were intended to do and that is to mask the nature of the underlying conduct.
Guantanamo was constructed to house enemy combatants outside American soil with the notion that doing so put these individuals outside the protection of American law. Giving the prisoners the status of unlawful enemy combatant put them outside the protection of the Geneva Conventions. None of the assumptions underlying these legal slights of hand were ever questioned by the Bush Administration. Although the court has determined that Guantanamo is not a legal black hole, the second assumption remains in place. What do we really mean by “unlawful enemy combatant?” When we invaded Afghanistan the Taliban was the ruling government, however, some of the individuals who fought on the side of the Taliban have been labeled as “unlawful enemy combatants.” If we follow the Geneva Convention we will hold these individuals until the hostilities cease, but that is not likely to occur in our or their lifetime and certainly not if we fail to win the war of ideas.
The nomenclature meant to circumvent established legal norms has helped to create a framework for arguing that depriving someone of sleep until he loses his mind, striking that individual without the intent to cause organ failure and simulating his drowning are all just ways to de-brief a person. Now that we are discovering that many individuals subjected to these techniques have lasting effects from their treatment do we go back and examine the intent of the interrogator? In any other setting, intent is inferred from the result of a person’s conduct.
Although I agree that prosecuting an administration’s legal counsel is problematic, I do think a thorough examination into the legal framework that was developed to promote these actions should take place.
“In my opinion, anytime an individual takes the oath to serve the constitution, the individual creates a relationship with that constitution deeper than the average citizen.”
"You really do not want to go down this road."
I am not interested in putting people in jail for distorting the oath. I am interested in active personal accountability. This means explain yourself. More specifically, this means articulate your logical journey with the same integrity as you did when you justified torture to the executive.
This includes the democratic and republican congress that issued a blank check under AUMF. This includes everyone. This even includes the apathetic citizen who failed to vote in 2000, 2004 but nonetheless criticized the executive.
I think it is fair to say that people made and will continue to make mistakes. There is nothing wrong with saying, "We we're attacked, I was scared, the whole country was scared, and we reacted as best we could."
I do not think that most people who work in the government go to bed with the intention of disrespecting the constitution. I think people react to their circumstances in the manner they perceive those circumstances.
It is easier to justify reactions through legal analysis, case cites, and historical precedences.
It is much more difficult to merely stand up and say, "I apologize."
An apology creates no precedence because history teaches us that the American citizenry is the most forgiving citizenry in the world.
“I am not interested in putting people in jail for distorting the oath. I am interested in active personal accountability. This means explain yourself. More specifically, this means articulate your logical journey with the same integrity as you did when you justified torture to the executive.”
So you want an explanation/apology from lawyers for a legal opinion that:
1 - they thought accurately reflected the state of the law at the time the memo was written;
2 - the current DOJ thinks still accurately reflects the state of the law as they subsequently argued the memo’s position in court;
3 – the current Attorney General testified to congress accurately reflects the law;
4 – that not one but two circuit courts adopted as the correct statement of the law.
What exactly do they need to explain / apologize for?
Does Eric Holder need to explain / apologize for adopting and continuing to use an identical interpretation of the law?
I think I need to clarify exactly what it is I am attempting to argue here. I am not saying that waterboarding, stress positions, sleep depravation, etc. do not or should not fall under the definition of what most people think qualifies as “torture”. I am saying that such interrogation methods do not currently satisfy the legal definition of “torture” under US law. The US implemented the Convention Against Torture at 8 CFR §1208.18
which requires that:
(5) In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering. An act that results in unanticipated or unintended severity of pain and suffering is not torture.
8 CFR§1208.18(a)(5).
Under US law as it currently stands, any act that is not “specifically intended to inflict severe physical or mental pain or suffering” is not legally torture. Torture under current US law is the rare example of a specific intent crime. If that bothers you, you should write your Senators and Representatives and ask them to change the law. What we cannot do is retroactively punish people that accurately stated the law at the time, even if we strongly disagree with that law.
Rewording the Wikipedia page on “waterboarding” is not really an argument and doesn’t move things forward any more than reciting an encyclopedia entry. For one thing, the page is fully of errors.
That bit about “Generals in the Vietnam war declared it illegal” is really off point since the people conducting the interrogations at issue were not from the US military, but from the CIA. And even if it were relevant, the sourcing on Wikipedia is sketchy at best. A single news article that doesn’t name these generals, doesn’t link to any of the sources it discusses, and doesn’t even give the names of the military personnel supposedly convicted of performing waterboarding on prisoners. We can’t even tell if these personnel were convicted because waterboarding was outlawed by the Uniform Code of Military Justice or if they were simply not authorized to question prisoners so any action by them would have been illegal. Either way, Senator Ted Kennedy didn’t think waterboarding was a crime under US law or under the UCMJ since he tried to pass an amendment that specified waterboarding as a war crime in 2006 (it failed). Odd that it would be necessary to include a ban on waterboarding in the UCMJ if it were already in there.
Some Japanese soldiers were convicted and executed for war crimes which included “water torture”, but that was not their only crime. These soldiers were also convicted of beating, burning, starving, as well as forcing to drink gallons of water then jumping on prisoners in addition to waterboarding. To say that “Japanese soldiers were tried and hanged for war crimes for waterboarding civilians and American prisoners of war during WWII” is like saying Charles Manson got the death penalty for conspiracy to commit trespass at the Tate home. I think the murders committed there might have had something to do with the ultimate sentence. I am unaware of any Japanese soldiers convicted and executed solely for waterboarding prisoners.
"8 CFR§1208.18"
I agree with the position that it is a specific intent crime. The elements cannot be satisfied under current facts in order to hold anyone other than the individual who actually committed the act accountable. Further, there are not enough facts to even hold the actual individuals who committed the act accountable.
Despite this legal reality, a portion of the public still wants accountability. While at the same time, another portion of the public does not want to address the issue because the law (8 CFR§1208.18) has settled the issue.
If the public is still at odds despite the fact that the law has settled the issue then, you are correct. Tough luck to the public.
You are further correct in asserting that the proper channel of dispute is the legislative process.
However, the legislative process, as we have learned, is a reactive process. Reactive meaning; they act without much debate if there is a real split between opposing sides.
My concern is that given the democratic majority, the reaction might be too extreme leading to extreme legislation.
The only way the extremities can be curtailed is by having the individuals who wrote the memos, created the policy, and carried out the acts step up on the public platform and tell the whole story.
This creates an informed discussion. I am not interested in pointing fingers. I am responsible for what happened just as much any other citizen is responsible.
In short, this discussion's legal substance will continue to be limited so long as the real truth is not put forth.
We cannot apply past acts of any administration to fill in the gaps nor can we competently interpret the law without really hearing what took place.
We hold ourselves out as a moral country. I have heard both sides of the aisle take license with the notion of morality.
Maybe, I live in wonderland. Maybe, I checked out a long time ago :). But, I'd like to think that I can still be inspired by my leaders' actions not just their words.
I consider every person who works in government a leader regardless of their political affiliations.
I think one of the most important point you need to look for is getting a right advice from right lawyer. you should talk to lawyer with great amount of experience.
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