A Response to Glenn
In a post today, Glenn Greenwald writes:
First, as I made clear yesterday, my opposition to prosecutions extends only to those who acted in good faith reliance on the memos issued by the OLC, not the authors of those opinions or anyone whose conduct went beyond their scope. Second, and this is where I should have been more clear, my objection is fundamentally a legal one, not a political or moral one. While I feel that the CIA agents who carried out these orders are less morally culpable than their superiors who authorized them, I still believe they have much to answer for from a moral perspective. Second, I do not remotely agree with the sentiment--often expressed by President Obama--that it would be better if we all just moved on and kept our focus forward, not backward. I think there needs to be a reckoning for what happened during the Bush administration, and I fully support the appointment of a special prosecutor and the convening of a Truth Commission to investigate what happened. I think that unless the people who participated in this (and particularly those who authorized this) are publicly shamed, this whole grisly episode in our history is bound to repeat itself.
That said, from a legal perspective, I do not believe there is any chance in hell of securing a criminal conviction against anyone who acted in accordance with specific OLC legal advice. The opinions of the OLC essentially carry the weight of law within the executive branch. You'd have about as much chance of convicting someone who acted in accordance with a specific Supreme Court opinion.
I realize that the treaties we've signed require us to refer cases of torture to the proper authorities for prosecution. But Eric Holder is that proper authority. And I'm pretty certain that he has concluded that prosecuting people who acted in accordance with specific OLC authorization would be a futile and entirely counterproductive endeavor. Not only would such prosecutions fail and result in acquittals, but those acquittals would then be treated as vindication of the underlying conduct. I find it hard to believe that our treaty obligations require us to pursue criminal prosecutions that have zero chance of resulting in a conviction. Moreover, intelligence officials would never trust OLC legal advice again, which is a problem given the many very necessary and very legitimate things we ask these people to do.
Glenn points out that under the relevant treaties (and under precedent dating back to Nuremberg), "an order from a superior officer or a public authority may not be invoked as a justification of torture." I'm well aware of this. And if this were a simple case of someone being ordered to do something illegal by a superior officer, I'd absolutely believe that prosecution was warranted. But it's not that simple. These CIA agents were not only ordered to do what they did, they were advised by the OLC--the ultimate arbiter of law within the executive branch--that what they were being ordered to do was not torture.
Let me offer a hypothetical. Suppose that the Supreme Court issued an opinion holding that a certain interrogation technique did not constitute torture within the meaning of the law and relevant treaties. In reliance on that opinion, a CIA official then orders an agent to use that technique. No matter how morally repugnant or poorly reasoned the Supreme Court opinion is, does anyone believe that the CIA agent should be prosecuted in this situation or that such a prosecution would ever result in a conviction?
The situation we're dealing with here is really not all that different than my hypothetical. In order for our national system of government to function properly, there has to be an ultimate arbiter of what the law is. The Supreme Court plays that role in our system. But the same is true of the executive branch. In order for it to work properly, there has to be a body within the executive branch that acts as the ultimate arbiter of what the law is, particularly given the gray areas of the law in which the intelligence agencies are always operating. Our intelligence agencies can't just go get advisory opinions from the Supreme Court. But they need clarity or they would never act. The OLC has traditionally played that role of ultimate arbiter within the executive branch. Which is why OLC attorneys have an enormous responsibility. Attorneys like John Yoo and Jay Bybee badly betrayed that responsibility.
So to summarize, my position is not that prosecuting CIA agents is somehow a bad idea politically (though it is). My position is that prosecutions directed at those who acted in accordance with specific OLC advice are not legally feasible and would ultimately be counterproductive. I think there should be a special prosecutor appointed to investigate and that if that prosecutor finds evidence of CIA agents who went beyond the scope of the OLC memos, they should be prosecuted. But I think that any investigation should focus primarily on the people who authorized the conduct in the first place.
UPDATE: It occurred to me as a I read this over that perhaps what this whole episode exposes more than anything is that there is a major structural flaw in our system. Perhaps we need to create some new, more independent body to fill the role that the OLC has traditionally played.
UPDATE II: In response to an excellent comment by Kevin Heller below, I want to clarify one thing. I do not believe that acquittal of CIA agents would be compelled as a matter of law, i.e., I don't think a CIA agent could simply file a motion for dismissal on the grounds that he was following OLC advice. Rather my point was that these cases would inevitably go to jury trial and, as a former prosecutor, I find it almost inconceivable that a jury would vote to convict under these circumstances. Again, if the agent went beyond the scope of the memos, that's another story.
I agree entirely that it is the DOJ lawyers who purported to legalize torture and the high-level Bush officials ordering it who are the prime culprits and criminals, as compared to, say, CIA agents who were proverbially just following orders and were told by the DOJ that what they were doing was legal. But leave aside the question of whether prosecutions would produce good or bad outcomes. After all, the notion that the law can and should be ignored whenever we think doing so would produce good results or would constitute good policy was the engine that drove Bush lawlessness. If, as Barack Obama proclaimed yesterday, "the United States is a nation of laws" and his "Administration will always act in accordance with those laws," isn't it the obligation of those opposing prosecution to justify that position in light of these legal mandates and long-standing principles of Western justice? How can they be reconciled?The post Glenn links to is mine, and I think that he is right that I need to do a better job of explaining my position. So here goes.
First, as I made clear yesterday, my opposition to prosecutions extends only to those who acted in good faith reliance on the memos issued by the OLC, not the authors of those opinions or anyone whose conduct went beyond their scope. Second, and this is where I should have been more clear, my objection is fundamentally a legal one, not a political or moral one. While I feel that the CIA agents who carried out these orders are less morally culpable than their superiors who authorized them, I still believe they have much to answer for from a moral perspective. Second, I do not remotely agree with the sentiment--often expressed by President Obama--that it would be better if we all just moved on and kept our focus forward, not backward. I think there needs to be a reckoning for what happened during the Bush administration, and I fully support the appointment of a special prosecutor and the convening of a Truth Commission to investigate what happened. I think that unless the people who participated in this (and particularly those who authorized this) are publicly shamed, this whole grisly episode in our history is bound to repeat itself.
That said, from a legal perspective, I do not believe there is any chance in hell of securing a criminal conviction against anyone who acted in accordance with specific OLC legal advice. The opinions of the OLC essentially carry the weight of law within the executive branch. You'd have about as much chance of convicting someone who acted in accordance with a specific Supreme Court opinion.
I realize that the treaties we've signed require us to refer cases of torture to the proper authorities for prosecution. But Eric Holder is that proper authority. And I'm pretty certain that he has concluded that prosecuting people who acted in accordance with specific OLC authorization would be a futile and entirely counterproductive endeavor. Not only would such prosecutions fail and result in acquittals, but those acquittals would then be treated as vindication of the underlying conduct. I find it hard to believe that our treaty obligations require us to pursue criminal prosecutions that have zero chance of resulting in a conviction. Moreover, intelligence officials would never trust OLC legal advice again, which is a problem given the many very necessary and very legitimate things we ask these people to do.
Glenn points out that under the relevant treaties (and under precedent dating back to Nuremberg), "an order from a superior officer or a public authority may not be invoked as a justification of torture." I'm well aware of this. And if this were a simple case of someone being ordered to do something illegal by a superior officer, I'd absolutely believe that prosecution was warranted. But it's not that simple. These CIA agents were not only ordered to do what they did, they were advised by the OLC--the ultimate arbiter of law within the executive branch--that what they were being ordered to do was not torture.
Let me offer a hypothetical. Suppose that the Supreme Court issued an opinion holding that a certain interrogation technique did not constitute torture within the meaning of the law and relevant treaties. In reliance on that opinion, a CIA official then orders an agent to use that technique. No matter how morally repugnant or poorly reasoned the Supreme Court opinion is, does anyone believe that the CIA agent should be prosecuted in this situation or that such a prosecution would ever result in a conviction?
The situation we're dealing with here is really not all that different than my hypothetical. In order for our national system of government to function properly, there has to be an ultimate arbiter of what the law is. The Supreme Court plays that role in our system. But the same is true of the executive branch. In order for it to work properly, there has to be a body within the executive branch that acts as the ultimate arbiter of what the law is, particularly given the gray areas of the law in which the intelligence agencies are always operating. Our intelligence agencies can't just go get advisory opinions from the Supreme Court. But they need clarity or they would never act. The OLC has traditionally played that role of ultimate arbiter within the executive branch. Which is why OLC attorneys have an enormous responsibility. Attorneys like John Yoo and Jay Bybee badly betrayed that responsibility.
So to summarize, my position is not that prosecuting CIA agents is somehow a bad idea politically (though it is). My position is that prosecutions directed at those who acted in accordance with specific OLC advice are not legally feasible and would ultimately be counterproductive. I think there should be a special prosecutor appointed to investigate and that if that prosecutor finds evidence of CIA agents who went beyond the scope of the OLC memos, they should be prosecuted. But I think that any investigation should focus primarily on the people who authorized the conduct in the first place.
UPDATE: It occurred to me as a I read this over that perhaps what this whole episode exposes more than anything is that there is a major structural flaw in our system. Perhaps we need to create some new, more independent body to fill the role that the OLC has traditionally played.
UPDATE II: In response to an excellent comment by Kevin Heller below, I want to clarify one thing. I do not believe that acquittal of CIA agents would be compelled as a matter of law, i.e., I don't think a CIA agent could simply file a motion for dismissal on the grounds that he was following OLC advice. Rather my point was that these cases would inevitably go to jury trial and, as a former prosecutor, I find it almost inconceivable that a jury would vote to convict under these circumstances. Again, if the agent went beyond the scope of the memos, that's another story.
posted by A.L. at 8:40 AM
68 Comments:
As a purely pragmatic matter, I agree there is very little chance that a jury would convict a CIA interrogator who relied on the OLC memos. From a purely legal perspective, however, I think it is erroneous to say that an interrogator is entitled to an acquittal simply because an OLC memo told him waterboarding was legal or his superiors ordered him to engage in such conduct. Legally, in terms of both the defense of superior orders and the defense of estoppel by entrapment, an interrogator's reliance has to be both honest AND reasonable -- and even those who do not believe the interrogators should be prosecuted, such as Marty Lederman, admit that waterboarding is patently illegal, ie, so manifestly unlawful that no interrogator could have reasonably believed it to be legal.
If you are interested, I explain estoppel by entrapment at greater length -- in the context of a debate I had with Marty last year -- at Opinio Juris:
http://opiniojuris.org/2009/04/16/obama-releases-memos-promises-impunity-misunderstands-estoppel-by-entrapment/
Kevin
You make a well-reasoned case, but someone who doesn't know torture when he sees it, or believes that a legal opinion can turn it into something else, isn't fit to be a citizen of the United States, let alone trusted to guard the country from its enemies.
What Obama has done in this instance guarantees that torture will be institutionalized as a tool of state, no matter what he says, or anyone else thinks. This will be true whether al-Qaeda continues to exist or not, and in my opinion, is a far greater danger to us than an entire Middle East full of radicals willing and able to do us harm.
I don't get it - your "legal" reasoning says the the CIA guys had to do it because the recommendation had the force of law.
This from RawStory :
The prosecutors wrote that going after lawyers who wrote nonbinding recommendations for the president and his senior staff, rather than targeting higher-ranking officials who authorized the alleged torture, “raises important problems from a legal standpoint.”I cannot state this enough, I'm not a lawyer, but one of you seems to be saying that these memos are equivalent to the highest law in the land (you) and the other seems to characterize them as non-binding memos, something we might use to order more printer paper (the Spanish attorney general).
Thoughts?
The opinions of the OLC carry the weight of law in the executive branch. You'd have about as much chance of convincting someone who acted in accordance with a specific Supreme Court opinion.
Isn't the reason to have competent counsel in the OLC (or anywhere for that matter) precisely because those acting on their advice may be subject to prosecution if the courts don't agree with their interpretation? I'm sure there is a grey area where acting in good faith may be a sufficient defense and the corrective action is a change of policy, but any rationale for political expedience or any other purpose used to put the CIA in that grey area will also be used by the administration's defenders. Either everyone was clearly over the line, or no one was.
I strongly disagree with an example that compares an OLC opinion with a supreme court decision because it nullifies the separation of powers and validates the Bush/Cheney/Yoo/Addington theory of unlimited executive power. The clear intent of congress is irrelevant. The interpretation of the judiciary is unenforceable. All that matters is how the executive chose to interpret or ignore the law.
I can only say two things:
If I were an agent, you could hand me twenty of these hideous memos saying that these acts were not torture and I would still know that they are torture and that in performing them I would be breaking the law and violating moral codes instilled in me from childhood.
If I were on a jury, trying someone who performed acts described in these memos, I would completely ignore a dozen or more memos from their superiors presented as defense saying the acts were legal and I would vote to convict them of torture based on the fact that any civilized human being should not have to ask fo any opinion but should know with absolute certainty that those acts are torture.
"No jury would convict"? If I were on it it damn well would.
One question, A.L. I don't disagree with your interpretation of things. But with regards to Dread Scot's comment directly above, if the OLC is wrong, aren't people who followed its edicts culpable anyway? Don't some of the memos basically say (I paraphrase, of course), "We're pretty sure the courts would rule against everything we're saying, but they're never gonna find out about it, so go nuts!"?
Fargus,
The OLC doesn't have the power to immunize you from prosecution. All they can do is issue opinions. But their opinions carry a lot of weight given their traditional role in the executive branch. My point is not that you cannot be convincted of something the OLC gives you permission to do. Just that, in all likelihood, you won't be convicted.
Great point Dread Scott. Would AL, or anyone else, defend OSHA or FEMA or EPA for following a President's signing statements and not a law passed by Congress? To me, they seem quite similar to OLC memos.
Blue, there's a HUGE difference between an agency like OSHA getting sued and a person being criminally convicted of a war crime. The standards of intent and proof in a criminal case are much higher. I'm only talking about the feasibility of convicting a CIA agent of a crime.
I agree with most of what you write, A.L.
With your focus here on getting convictions (rather than acquittals), your experience as a former prosecutor, and your belief that the people who authorized the conduct (ie the lawyers / the Bush administration) - do you believe that convictions could be obtained against the creators of the policy without "going up the chain" turning the small fish first to land the big fish (RICO-style)?
I'll add that I'm more than a little partial to what Jayhawk says. I'm not so sure a jury would automatically acquit an interrogator. This uncertainty would also be present in the minds of the interrogators. Moreso when you consider they might well have been asking for retroactive CYA for techniques they'd already used (without reliance on any OLC opinion). What does a professional interrogator's training (which I assume is extensive and would come out at trial) teach him/her about the history of torture, what is and isn't recognized as legal, etc? If things the interrogators thought (based on their training) were over the line suddenly become OK, couldn't a reasonable person (jury instruction) doubt the validity of the legal opinion?
All that is getting around to the idea that an offer of immunity in return for full cooperation/testimony might look pretty attractive to the actual interrogators. They were betrayed by OLC. Why should they risk a conviction covering for OLC lawyers?
wye
The point that I can't get past (and you allude to it in your update) is the idea that a memo can make torturing someone an un-prosecutable crime. If that truly is the case then the OLC has too much power. Just as signing statements give a President too much power.
Maybe trying one of the interrogators would force the courts to review the powers of the OLC and its memos. To me, that would be a good thing.
I absolutely agree with Jayhawk. Why did the FBI agents who were called into these situations immediately label this conduct as torture and violating both U.S. and international law, as well as the Geneva Conventions? Their response: when its agents balked the FBI refused to authorize its agents to participate in any of these "interrogations."
These CIA agents were trained interrogators who grew up, as did we all, post-holocaust, post Nuremberg, post-Gulag, post-Cambodian killing fields and Pol Pot torture, post Milgram experiment, post Zimbardo experiments. Where they all deaf, dumb and blind to U.S. law and policy over the past fifty years? No order from above excuses you from not exercising your own will and saying no.
These were adult moral actors.
While I agree with AL about the likely futility of prosecuting CIA interrogators, Obama’s position is not based on that. This is what he said yesterday:
“In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.”
While there is some ambiguity in these remarks (plus what I read as an ironic reference to the Valerie Plame case), they do not imply that the CIA officers who relied on the OLC opinions are malefactors who are escaping justice based on a legal technicality. Instead, they suggest that these people are heroes who deserve our gratitude for their sacrifices and that punishing them in any way (including merely revealing who they are) would be unjust and counterproductive to our security.
This interpretation is supported not only by the words Obama used, but by the actions he is taking or, more precisely, not taking. If Obama thought that the CIA officials in question had done something wrong, he could presumably have them fired, transferred, or otherwise administratively disciplined or, at a minimum, order the CIA director to commence administrative proceedings. Unless I have missed something, there is no evidence that Obama has done any of those things.
Exactly, to what Sun Setting said above.
So tell me, if you were one of these interrogators, would you refuse an offer of immunity (and retirement with pension, etc) in return for full cooperation with the prosecutor?
If you were the lawyer for one of these interrogators, would you advise your client to refuse an offer of immunity? A.L.? I sure as hell would not. That would be absurd.
We don't have to bull-headedly ram interrogators through to a trial. All a prosecutor has to do is exert enough leverage to close a deal for immunity.
This argument over "whether the interrogators should be prosecuted" is not a zero-sum game.
wye
MLS,
My point wasn't to defend Obama's public justification for doing what he's doing, just my own.
The "I'm not a lawyer" discalmer.
1. Anyone who argues against it being torture, gets it done to them then the question gets reasked.
2. I would not only convict but put them away for a VERY long time. Actually now that I think about it, much longer terms for those who approved/justified the actions.
3. So a letter from the Reichs equivelent of the OLC justifies all actions? I thought that got settle at Nuremburg?
4. THis just goes to show we need to seriously immasculate the executive branch. We do not elect a king. I might start with a constitutional ammend ment that remove the executive from ALL law enformcement and stikes the artical 5 CinC clause.
Just remember
"Who Watches the Watchmen"
As I understand it, the point of the Nuremburg precedent was also to say that the "just following orders" defense was invalid when the order-followers still had a moral choice in front of them. Since this was based on SERE training, which I think (am not sure) all CIA agents went through, presumably they have very solid ground for making such a moral choice: i.e., should I really be doing to these individuals what was done to me in SERE training, only more violently, more prolonged, and without their consent?
If, given this state of affairs, we have a CIA full of agents and interrogators who abdicate their moral and human responsibility for the cop-out alibi, "Huh, well, you's da boss," then I humbly suggest that we can find new ones. Since A.L. relies on a hypothetical thought experiment to justify his position, and the Nuremburg precedent keeps coming up, let's try another, more obvious, hypothetical. Suppose the OLC under Yoo/Bybee/Bradbury/whomever else authorized the CIA to start rounding up Jewish people, "rendering" them to Guantánamo/Bagram/some other supposedly "extralegal zone", and gassing them or stuffing them in ovens. Would this legal framework excuse them from participating in genocide?
Most of the talk about prosecutions and other courses of action has been centered around not only justice, but making sure this never happens again. Do we really want to eviscerate all the legal architects and top officials of the torture regime and leave all the torturers and "medical professionals" in place? Doesn't that leave the door wide open for the next time a secret regime comes in and orders the CIA to do blatantly illegal things, to have these same unmindful order-following drones at the bottom of the organization doing the actual dirty work?
Many of the CIA agents' defenders are arguing precisely this. They're basically saying that in order to have a proper intelligence community, we need to have only agents who, when told to jump, ask only, "How high?" Far from it, I'd say. Precisely because, as some point out, these people are constantly working in a "legal gray area" and are ripe for the potential of abuse, we need people who are more capable of good judgement, not less.
AL,
If I understand your position correctly, it's that regardless of the law this would be a hard case for a prosecutor to make, and because of the political consequences of acquittal it's best not to prosecute the culpable agents.
But isn't this precisely the sort of case where the rule of law should be scrupulously followed? Your reservations are based on hypotheticals and ultimately political calculation.
Torture is illegal. No one is above the law. Those are bedrock guiding principles, regardless of hypothetical future political consequences.
Tom, you write: "Torture is illegal. No one is above the law." I completely agree. But in this case, the top lawyers in the government specifically advised the agents that what they were doing was not torture. In order to commit a crime, you have to have the requisite mens rea. Intent matters. No jury is going to convict a goverment agent of a crime when he was acting on orders from a superior and was specifically advised, in writing, by the administration's top lawyers that his orders were legal. And prosecutors shouldn't bring cases just to go through the motions and have a show trial. That's an abdication of their own responsibilities to exercise proper prosecutorial discretion.
Nod. *Because* the entire issue was "how can we make torture look like it wasn't torture", I more-or-less agree with you. (NB: I don't *like* the conclusion... but I think you're right.)
I think of it as being akin to a bomber. If a bomber is told to bomb a school, *because* it has been determined that weapons and enemy soldiers are staging for an attack there, then the bomber has to trust that the school has temporarily become a legal target.
If anyone bears responsibility for the bombing of the school, it must lie with the person who convinced the bomber that the school was a legal target, because the bombing of an enemy position is not patently illegal.
The only thing that bothers me is this: if the allowable methods had included "beating detainees with rubber hoses" (a noted way of causing pain without visible injury), the agents should have protested, despite the OLC opinion. So, were any agents doing the analogous equivalent of beating detainees with rubber hoses? And should we be taking positive steps to ensure future interrogators can't get sucked in to doing these things in the future?
While it may be incredibly unlikely to get convictions in every case, it occurs to me, looking around, that cases are brought and pursued every day in which success is not in the cards.
Take a look at Norm Coleman, for example (yes, it's a civil case, not criminal.) Or Larry Craig's hopeless appeals. Or the Kansas AG trying an abortion provider.
I say, it is the responsibility of those who pretend to protect and defend the rule of law to bring charges against those they can identify and charge. Even if they cannot all be convicted by a jury (I expect a lot of hung juries), there will still be less willingness to break the law in the future.
And as for Bybee, Addington, and Yoo, they must be stripped of any association with the law. Disbarment, impeachment, removal from office, or all of the above.
The alternative is to admit that "rule of law, not men" is meaningless, since a bureaucrat can simply go to the OLC and get whatever opinion desired.
C2, the examples you cite seem to support my view. The Kansas AG abused his discretion and the other cases are examples of civil litigants or defendants. Prosecutors have very different responsibilities that other lawyers and one of them is to avoid bringing frivolous or unwinnable cases. It's a waste of taxpayer money and it's usually counterproductive (even when you strongly think you are in the right).
As for this:
The alternative is to admit that "rule of law, not men" is meaningless, since a bureaucrat can simply go to the OLC and get whatever opinion desired. I can understand why John Yoo and Jay Bybee have made people feel this way, but traditionally, the OLC has not been willing to simply green light whatever the President wants to do. I guarantee you that Dawn Johnsen won't do that when she's the head of the OLC. If what they're asking to do is illegal, she'll tell them so. To a significant extent, Bybee's replacement, Jack Goldsmith, did that as well. That's what precipitated the Ashcroft hospital episode.
I'm not sure that line of reasoning holds water. If that's true, then the lower level Nazis wouldn't have been prosecuted after WWII.
Soldiers have a duty to protect the Constitution and an obligation to be informed about international treaties signed; in other words, to know right from wrong.
In a court, I'd rip the argument to shreds that says lower level officers/soldiers were only following orders.
A.L.,
I do not see any of my example cases as supporting your view. In each case, the suits were fore-doomed before they were brought, yet they were pursued anyway, and, with the exception of Larry Craig, they have had real effects on the people involved. Al Franken is still not in office. You can check with the Kansas doctor to see if he'd be less willing to treat an underage girl -- but in a similar case long ago, I know for a fact that the doctor became much more careful about his patients, even though he had been acquitted.
You say the Kansas AG abused his position (which I happen to agree with)? Yet he still has it, without a cut in pay, reduction in grade, or any obvious penalty.
The cost of prosecutions is only an issue if you think adherence to the rule of law has a price that is excessive, in which case you are saying, effectively, that justice is for sale.
As for the theory that the choice of OLC personnel will make all the difference, perhaps -- but I think, without real penalties for Bybee, Addington and Yoo, they'll be more a model for future OLC operations than Dawn Johnson.
C2,
Are you saying that the DOJ should act like Norm Coleman or Larry Craig? Shouldn't prosecutors hold themselves to a higher standard that frivolous civil litigants. Remember too that prosecutions are funded by the taxpayer, not wealthy Republican donors. I don't want prosecutors engaging in quixotic prosecutions that are likely only to result in the vindication of bad conduct.
The fact that the CIA felt obliged to ask the OLC for the memos in the first place demonstrates to me, anyway, that the agents in question had severe -- um -- 'reservations' about their interrogations, and leaves room for a prosecutor to prove mens rea. (That's me, a prospective juror, talking.) Even at this level of government, operating under poor legal advice is no excuse for breaking the law.
A.L.,
I'm saying that sometimes you need to try to do what is right even if you are doomed to fail.
The Nuremburg analogy keeps coming up... I want to repeat that Nuremburg is a bad example. As I said in a comment to the post preceding this one, Nuremburg included such counterintuitive sentencing as this: the man who drove the slaves from the camp to the factories being put to death while the man responsible for slaves working in the factories got a slap on the wrist and was rehabilitated into full respectability after his sentence.
If the point is for true justice to be done, Nuremburg is a faulty example. Nuremburg was a political show trial.
As I said before, the guiding principle must be based on RICO law... immunity granted to the little people to bust the big people.
Honestly, the OLC writing a legal opinion that the methods in question were legal does not make them legal. The OLC is not a judicial nor legislative body. It neither makes nor delivers authoritative interpretation of the law. The OLC gives advice based on opinion.
If my lawyer falsely tells me that I can legally beat my girlfriend up, he is guilty of malpractice. If I beat my girlfriend up on his faulty advice, I am guilty of battery. His legal opinion does not shield me from my guilt.
An OLC opinion of legality is not authoritative, it is merely advisory. Malpractice by counsel does not, to the best of my knowledge, shield defendants from prosecution.
"The fact that the CIA felt obliged to ask the OLC for the memos in the first place demonstrates to me, anyway, that the agents in question had severe -- um -- 'reservations' about their interrogations"
I agree with this but I believe A.L's point goes something like this (paraphrasing and I could be dead wrong): Unless you can prove conclusively that the CIA agents would have gone ahead with these reprehensible practices anyway even If OLC had penned a memo declaring that those action were indeed torture (and they were asking simply to go through the motions), you can never ever prove intent.
"Malpractice by counsel does not, to the best of my knowledge, shield defendants from prosecution."
You're absolutely right, but what if the lawyer that gave you the advice is the same one prosecuting you? Comparing OLC advice to the advise of some criminal's personal attorney misses all sorts of important distinctions. In this situation, the DOJ would be prosecuting people for conduct that the DOJ specifically told them was legal.
Moreover, while the OLC is not the Supreme Court, it's opinions carry considerably more weight than those of Joe Schmoe hired gun defense attorney. The notion that these memos do not provide a serious (if not insurmountable) obstacle to prosecution is completely delusional.
"The fact that the CIA felt obliged to ask the OLC for the memos in the first place demonstrates to me, anyway, that the agents in question had severe -- um -- 'reservations' about their interrogations, and leaves room for a prosecutor to prove mens rea."
I don't understand this at all. It's not as if the individual agents were the ones seeking advice. Secondly, the CIA always consults with the lawyers before it does anything of significance. These guys operate in a world where the legal rules often not clear. They need guidance. Asking for such guidance is not evidence of a guilty mind.
AL
I'd like to see what you say about this footnote:
The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 ("[T]he waterboard technique ... was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee's breathing was obstructed. At the SERE school and in the DoJ opinion, the subject's airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator ... applied large volumes of water to a cloth that covered the detainee's mouth and nose. One of the psychologists/interrogators acknowledged that the Agency's use of the technique is different from that used in SERE training because it is "for real--and is more poignant and convincing.") see also id. at 14 n14. The Inspector General further reported that "OMS contends that the expertise of the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe." Id at 21 n26. We have carefully considered the IG Report and discussed it with OMS personnel. As noted, OMS input has resulted in a number of changes in the application of the waterboard, including limits on frequency and cumulative use of the technique. Moreover, OMS personnel are carefully instructed in monitoring this technique and are personally present whenever it is used. See OMS Guidelines at 17-20. Indeed, although physician assistants can be present when other enhanced techniques are applied, "use of the waterboard requires the presence of the physician." Id. at 9n2.At least for the men who waterboarded Abu Zubaydah and KSM, they could not claim good faith reliance on the memos, as they did not follow what the memo said.
The problem with A.L.'s point of view is that the torture started long before the first memo or oral advice. The evidence is right there in the memos, if you follow the timeline. They clearly say that Zuybaydah gave up the information on Padilla after being tortured. Padilla was arrested in June 2002. Do the guys who waterboarded Zuybaydah before the Bybee memo get a pass, too?
Also, we can tell from the ICRC report that all the limitations that Rizzo claimed would be followed were routinely ignored. Is that good faith reliance on them memos? Also, CIA employees were given the chance of 'opting out' of participation in the torture sessions. The people who did this weren't all 'just following orders'. Some of them were enthusiastic over-achievers. Even creepier, when the on-site torture team decided that Zuybaydah was fully cooperative and decided to stop waterboarding him, CIA HQ ordered him waterboarded one more time, just to be sure. They even sent somebody out to the field to watch it.
In response to both emptywheel and William Ockham, as I say in my post, I'm only talking about people who acted in reliance on and within the scope of the memos. If people went beyond the scope, particularly if they went well beyond, as the evidence seems to suggest happened, they are fair game and should be prosecuted. In fact, I'm pretty sure Eric Holder qualified his own statement by saying he was talking about only those who relied in good faith on the memos.
As for actions that took place prior to the issuance of the memos, my understanding (and I believe there are several references to this in the memos) is that the OLC orally approved certain interrogation techniques after consultation. To the extent that is true, that too would make prosecutions difficult.
But again, to the extent anyone went beyond the specific advice of the OLC, prosecute away.
Obama's wrong on not prosecuting the CIA officials. Here's why:
1) The Nazis at Nuremberg tried to use the "I was just following orders" defense. It didn't work then, and it shouldn't work now. It can be used to mitigate punishment, certainly. But Nuremberg established that each individual has a moral responsibility not to follow illegal orders.
See Article 8 of the Charter of the International Military Tribunal at Nuremberg:
"The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires."
http://usa.usembassy.de/etexts/ga4-trials.htm
2) As Glenn Greenwald points out, the Bush OLC admitted that its advice in these matters was provisional, not definitive. Check out this snippet from one of the 2005 memo:
http://3.bp.blogspot.com/_MnYI3_FRbbQ/Seee1nn7UBI/AAAAAAAABzI/vXLDjLwwWMI/s1600-h/bradbury4.png
"... we can not predict with confidence whether a court would agree with this conclusion."
That should have been a big red flag to anyone who was looking for it that there was -- even in the minds of the most ardent legal supporters of torture in the administration -- some doubt about whether what they were doing was legal.
3) It sets a terrible double standard. We've already prosecuted the poor schlub grunts at Abu Ghraib who tortured the prisoners there. But we're not going to prosecute their counterparts in the CIA who DID or ORDERED the same things? Obama talks about how unfair it would be to prosecute people for doing something they thought was legal. What about the unfairness of prosecuting some political weak actors while immunizing political powerful ones?
4) Ignorance of the law -- or relying on misleading or incorrect advice -- is no defense. Again, it may help you mitigate the penalties. But if you break the law, you break the law.
A CIA agent getting (bad) advice from John Yoo at the OLC should be no different than getting an ordinary person getting (bad) advice from a disreputable attorney.
I hear what AL is saying about the problem of being prosecuted by the same entity that gave the bad advice. But torture is a war crimes and we are legally obligated to investigate and prosecute.
Would it be better if we just left it up to Spain or some other third country to investigate and prosecute the CIA? That's something that other signatories to the Convention on Torture are legally obligated to do if we abrogate our responsibilities here and it would certainly address the conflict concern.
5) A reasonably informed person in the CIA should have known that what the OLC memos authorized was torture and the memos, therefore, shouldn't have been relied upon.
These were people who were presumably trained in interrogation techniques. Presumably they were trained in what was going beyond the pale. At the very least, they should have known that waterboarding has long been considered torture, and we prosecuted Japanese soldiers for that after World War II.
As mentioned above -- and reported by Jane Mayer in "The Dark Side" (if I recall correctly), when the FBI agents came in and saw what was going on -- THEY REFUSED TO PARTICIPATE. They knew that on its face what was being done was torture -- no matter what some OLC memo said.
More than that -- as the one of the memos itself mentions -- some of these techniques that were greenlighted are the the very same ones that the State Department at the VERY SAME TIME was condemning as torture.
See this excerpt here:
http://1.bp.blogspot.com/_MnYI3_FRbbQ/SeeXtKpDOYI/AAAAAAAABx4/_akx896tKBI/s1600-h/bradbury2.png
And anything that was done post-2005 (when three of the memos were released) would have been done in the wake of Abu Ghraib and the Taguba report about the abuses there. At the time the OLC put together those memos, the government had already court martialed several of the soldiers who took part in the abuses at Abu Ghraib and was in the process of court martialing others.
6) As some have mentioned here, at least in some cases, the memos were post-facto justifications for torture that HAD ALREADY BEEN COMMITTED. It's hard to argue -- at least in those cases -- that the folks were simply following bad advice.
Your explanation was very compelling and persuasive.
But what you are saying is that those in the Executive Branch, i.e., the CIA, get their marching orders regarding what is lawful from the OLC, is this correct?
So to take this to an exaggerated point: if the OLC told the CIA it was legal to kill Person A, then that CIA agent could kill that person and not face consequences?
This does not seem right. Also, are you equating the OLC to the Supreme Court?
Apologies if any point I make here has been previously stated.
It seems the Nuremberg Trials are a different thing. These were against high ranking Nazi officials. Not the specific soldiers who operated the ovens. As well, the crimes done by the OLC via the CIA interrogators were done during an act of interrogation. They had reason to believe (maybe) there was information to obtain. This is different than ordering millions of men, women and children to be gassed and to perform experiments on them. To me this further supports the decision to not prosecute the CIA agents. Now, the agents who put insects in with supposed terrorists' children. Those agents should go to trial. Anyone willing to apply pressure to a 7 or 9 year old needs some time away from humanity.
I disagree with the suggestion that bringing charges against some agents would cause future officials to question any opinion put forward by the OLC. It is my understanding that the OLC was told by the Executive Branch to find a way to justify certain techniques. Not the other way around. The EB wasn't wondering what techniques they could use and so they asked for an opinion. They knew the techniques they wanted and told the OLC to justify it. Hopefully this will never be the case again.
I'm not sure what the Geneva Conventions mean when they say "Each High Contracting Party" will bring the criminals before their own courts. Would that mean the US in this instance or would that mean the international community at large? I would like to see the international community get more involved in this prosecution. This is the way Nuremberg started.
Obama is right when he talks about retribution and moving forward and all of that. The political reality is that if Obama orders an investigation the other side will scream "partisan witch hunt". Should that over-rule the rule of law? No. It shouldn't. But it does. If Obama wants to accomplish anything (and he needs to accomplish plenty), then he needs to be as clean as possible. This is why Holder should lead the charge or the international community should step up. Obama's hands seem to be tied in this case. But I am probably being naive a bit. It seems like we would want the leader of the free world to stand up regardless of the political outcome.
Kevin's right -- I wouldn't hold my breath for Obama to take a morally or legally "pure" position -- he's a "pragmatist" don'cha know.
However, I wonder if Obama's pledge to protect those who were "relying in good faith" on the OLC will pressure him to prosecute those higher up. Eric Holder can certainly interpret Article 8 of Nuremberg his own way, but it would be much harder for the executive of one country to force the judiciary of another to leave the CIA alone.
"You'd have about as much chance of convicting someone who acted in accordance with a specific Supreme Court opinion."
There have been many bad SC cases, but one is hard pressed to find one that was egregious in such a multifaceted way as these memorandam.
As to chance of conviction, in individual cases, yes, there might be a chance to convict. It is different, I know, but people in the military were convicted for following illegal orders of superiors.
And, by now, the jury pool very well might respect the superiors here much less. And, be more horrified. So, if someone was charged for waterboarding or something else that resulted in severe physical or mental harm, this idea there is no chance to convict is unproven.
"intelligence officials would never trust OLC legal advice again, which is a problem given the many very necessary and very legitimate things we ask these people to do"
But, if we target those who wrote these opinions, since some are liable for promoting inhumane things, they would trust them? Why exactly? For the cynical reason they were themselves prosecuted?
"ultimately be counterproductive"
First, let us deal what Obama said. He said even investigations should not be made. These would not be counterproductive, particularly since we need to know what went on, in part to deal with higher-ups. Second, the threat of prosecution, particular for the most egregious agents, could be useful in such an investigation.
This is not about prosecuting everyone. It is about leaving things open, investigating, and making a careful choice on who to target, even for relatively minor sentences.
Finally, as a former prosecutor, you must know that in some cases, particularly the more dark factual situations, many will not take the risk of a long drawn out trial if some settlement could be made. Such a settlement would promote an important principle as would the effort itself.
It would not be a waste of time. Anyway, mls is right: we should focus on what Obama actually said. It is a lot different than AL's position here, and let's not ignore that.
Kevin is right about this too:
"They knew the techniques they wanted and told the OLC to justify it"
If there is an investigation and some prosecutions, it can be underlined that this was no normal situation. To the fact agents are on guard against makeweight defenses against mistreatment of this nature, that is a good feature, not a bug.
To expand slightly on my insistance that if I were on a jury I would find them guilty, I should add that the statement is based on the evidence at hand, and is intended only to refute the OLC memos as a defense. As witnessed by the FBI officers who refused to participate, there are some things that are self-evident and for which one does not need a lawyer's opinion. When one violates those things, I believe that having received a corrupt lawyer's opinin condoning the action does not make one not guilty.
There is the point that, having acted under orders and with the opinion of the OLC that it was legal, their penalty might well be mitigated to the point of being rather mild. But guilty they should be judged.
I have a question on mens rea. Is the standard that if they believed what they were doing was lawful, then they don't have have the requisite intent? In other words, there's no "malice aforethought"? Where does the rule that ignorance of the law is no defense fit in? I mean, if you are going to torture someone, sometimes to the point of death, the fact that someone erroneously told you that it was ok doesn't seem to negate your intent. But, I'm not a criminal attorney.
To follow up, is torture a specific intent crime? Does the intent have to be to torture? Or is it enough that, as the Bybee memo mentions, the CIA agents believed they didn't intend to cause harm?
I think that your general point is probably true - as a practical matter prosecuting the lower level operatives who carried out these orders is probably difficult. If, at the end of the day, all they wound up doing was nailing Tennant, Ashcroft, and Yoo's hides to the wall I doubt anyone would mind not seeing the grunts in the dock. I somehow doubt that's in the works, but we'll see...
But I have a question - My understanding is that the memos authorizing torture lay well outside the range of accepted legal opinion. That is, rather than straining legal principles to make them say what they want, Yoo et all simply pulled an argument out of their asses, punctuated it with a smattering of legalese and pretended that it was law. So, we're talking about protecting people who acted in good faith relying on advice that was provided in bad faith.
If that's the case, how far can that go? For example - a journalist is about to reveal sensitive national security information and the OLC gives a legal justification for assassinating him. Is there a certain point where the manifest illegality of the prescribed conduct would make it impossible to rely on the OLC justification in good faith?
A.L. said:
No jury is going to convict a gover[n]ment agent of a crime when he was acting on orders from a superior and was specifically advised, in writing, by the administration's top lawyers that his orders were legal. And prosecutors shouldn't bring cases just to go through the motions and have a show trial. That's an abdication of their own responsibilities to exercise proper prosecutorial discretion.Is is that no jury would convict, or no government prosecutor would take this to trial?
Because (and I’m sorry to bring this up again), the jury at Nuremberg did convict in such situations.
While I’m sure prosecutors evaluate what a jury might do, it seems to me if a prosecutor can prove someone committed a crime, there is an obligation to at least try to convict. The prosecutor has a duty to uphold the law, regardless of what a jury might do.
Look at how many times some of the big Mafia leaders were tried and acquitted (or got a hung jury). The prosecutors did not stop trying simply because juries (either through fear or being bought) refused to convict. Nor did the general population take the acquittals as evidence that the defendants were not criminals.
You have mentioned that acquittals would be used as vindication of what happened. How could that be spun as vindication as much as not even taking them to trial?
And since nothing like this has ever (to my knowledge) been taken to trial in the U.S., I think speculation about what a jury would do it simply that, speculation. A lot would depend on the attitude of high government officials (which is not promising at the present, I’ll admit), and how the case was presented to the jury.
"Moreover, intelligence officials would never trust OLC legal advice again, which is a problem given the many very necessary and very legitimate things we ask these people to do."
Let me suggest they will get over it. The problems we create by making government agents less trusting of OLC or SC rulings are simply nowhere near are serious allowing torturers go unpunished.
In addition you fear the government will not be able to get convictions. We can not know this until smart lawyers go to work trying to build the best possible case. Better to affirm our duty to prosecute CIA agents fully and make a decision about our chances after putting together the best case.
I'm having a hard time digesting everything. But I feel that a number of correspondents are getting at the heart of some very important principles, that I had grown up assuming were undergirding our society.
I keep coming back to my understanding of the Nuremburg precedent. I WANT that trial to have been about a principle, not a sleazy way for victors to hurt losers. To make my point, I want to restate AL's hypothetical words:
"Let me offer a hypothetical. Suppose that the REICH SUPREME JUDICIARY issued an opinion holding that a certain DEATH CAMP EXTERMINATION METHOD did not constitute MURDER OR GENOCIDE within the meaning of the law and relevant treaties. In reliance on that opinion, an SS official then orders a DEATH CAMP GUARD to use that EXTERMINATION METHOD. No matter how morally repugnant or poorly reasoned the LEGAL RULING is, does anyone believe that the SS agent OR THE GUARD should be prosecuted in this situation....?"
Personally I think there may be a grey area where a person risks being themself killed or tortured for refusing orders. But if not subject to such incredible pressure, they must be expected to act morally. If you are told to torture, or kill outside established norms, it is your duty and responsibility to do the right thing, regardless of secret opinions.
"You're absolutely right, but what if the lawyer that gave you the advice is the same one prosecuting you? Comparing OLC advice to the advise of some criminal's personal attorney misses all sorts of important distinctions. In this situation, the DOJ would be prosecuting people for conduct that the DOJ specifically told them was legal."
The Office of Legal Counsel is part of the DOJ, but is not THE DOJ. The OLC is not the U.S. Attorney's office. If the U.S. attorney's office has differing legal view than the OLC, then it is entirely appropriate to prosecute. A good case can be made, as well, for the Attorney General or the White House or even the CIA suing the individual OLC attorneys involved for malpractice.
I would argue on a moral level, independent from the legal issues, that malpractice by own office within the DOJ makes it that much more incumbent on the DOJ to pursue proper prosecutions.
"Moreover, while the OLC is not the Supreme Court, it's opinions carry considerably more weight than those of Joe Schmoe hired gun defense attorney. The notion that these memos do not provide a serious (if not insurmountable) obstacle to prosecution is completely delusional."
The memos provide a legal defense AGAINST prosecution, not an obstacle TO prosecution. There is a significant difference. A defense based on the idea that the interrogators and their superiors were acting on a good faith belief their actions were legal is legitimate courtroom argument, one open to judicial interpretation. A judge and jury could weigh it in the courtroom. There are precedents against allowing this defense to justify an acquittal however.
The OLC provides legal advice to government agencies and its opinions carry weight, certainly. Its opinions are still not law. The OLC is an advisory body for the executive branch, not a judicial body or a legislative body. Its recommendations can and should be considered, but they do not carry the force of law nor are they official judicial precedent.
Moreover, if the OLC opinions were given for reasons of political pressure or political collusion, they memos could be taken as evidence of criminal conspiracy to torture as easily as they could be taken as a defense against criminal torture charges. Legal precedents citing the conduct concerned as torture has been noted by others.
I was musing on this earlier today, and settled upon a simple law to be passed in Congress - no soldier or employee of the United States shall be prosecuted for any crime involving following an order until and when those who issued those orders are prosecuted first.
For once, make the world right again, instead of always putting the lower-level, operational folks on the sacrificial altar, and letting those with the most responsibility walk (at least then the burden should first be proved against those who actually formulated the alleged illegal policy, because we're talking about soldiers/employees following the orders of the commander-in-chief backed up by the legal sanction of the Attorney General, and coercive interrogation in a "state of war" [sic], not cold-blooded murder or slaughter of detainees, in which any moral man knows there is no justification).
Aside from that, I agree with AL, I'd win acquittal on every single on of these cases every time, and this success obviously wouldn't solely come from legalism, but from appeal to emotion and probably some diatribes against "the man" (hat tip Dewey Finn).
Overall, this was my initial impression of everything that I posted at Drum's Mother Jones spot last night:
Obama did good - clearly state that the United States no longer engages in these activities and condemns them, and focus clearly on who is actually responsible, rather than dragging this out and having operational people in the field get targeted to get higher fish and so on, declaring straight simple we will prosecute no operational personnel or people "down the line", and releasing the top-level memos to basically eliminate any incentive to do so.
If you have a beef, it's with the individuals who formed the policy, and the lawyers who incompetently and incomprehensibly justified it, because we are talking about various gray areas short of death, and people in the field ambushed with orders from the final authority and complex legalese to back it up, this isn't a Nuremberg situation, no lives were being taken with these actions, at least described in these released memos, and anywhere that American personnel did willingly engage in acts leading to the death of a captive, those individuals should be dealt with separately and with the full gravity of law.
Having said that, this was torture, but the individuals responsible are the ones who made the orders, who set the policy, who actually reasoned through this. For an individual down the line, it's one thing to say you should know as a matter of conscience not to kill or slaughter, but quite another to assert you should know what the actual dividing line is between legitimate counterintelligence techniques and illegitimate.
That's why we have a handbook, and people on high setting policy, being leaders, and consulting lawyers to make justifications, if even as dark amusingly insane these particular idiots were in this case.
Even though I bet it actually did happen, more than we probably realize, the notion that operational intelligence personnel, before taking action, should need to consult private lawyers to vet orders given by the president with the stamp of approval by the Department of Justice is absurd, unless those orders of course were outside of gray areas (as in the Nuremberg case, where there was no gray area, and which is so intensely different from this episode I'm surprised so many otherwise brilliant people are even bringing it up as highly relevant and suggestive, there's no need to cheapen or lessen the gravity of what Nuremberg was really about in order to exaggerate what really happened here, which isn't to say that what happened here wasn't truly disgusting and inhumane, but inhumane doesn't mean "crime against humanity", and I would hope we never diminish the lessons to be learned from that utter tragedy in Nuremberg in order to make loose, lazy, unsound correlations with obviously different situations today).
In this case, the slippery slope seems to be slipping in many directions, not just in the direction of torture.
Jimm, do you really believe this is a gray area?
Torturing people was what Stalin did. We, supposedly, were fighting for freedom and due process against that kind of world, for just short of 50 years. I think it's terribly important that the United States be held to its own moral standards, particularly when we are fighting wars in other people's countries to 'promote the spread of freedom and democracy.'
As I said in another comment, the Office of Legal Counsel is not '/the/ DOJ' (emphasis mine)but merely on office within it. The OLC's job is to give legal advice to government agencies. That legal advice is not authoritative, it is a legal opinion like that given by any private lawyer. If a private lawyer gives you bad legal advice, malpractice does not shield you from criminal responsibility even if you are entitled to compensation for said malpractice. The OLC (nor the larger DOJ) is neither a legislative nor judicial body, it has neither the power to make something legal nor the authority to declare something legal under existing law. It merely gives an opinion. That opinion can be wrong, and I believe it be wrong in this case.
I agree this is not related to the Nuremburg trial, this has far more in common with the 'Commission Trial' in which the bosses of three of New York's Mafia families were convicted of RICO charges.
So you would have us believe that these interogators did not know that what they were doing was torture? That's just, excuse me, bullshit.These things have been considered torture for hundreds of years, they do not majically become not torture because some lawyer says so. Anyone with an ounce of intelligence knows this. Just by the way, I am sick of hearing about pragmatism. This torture could not have happened if the officers in the field had followed clearly established law and refused to participate.
This could be wrong... but it occurred to me that the prosecution could get any reference to advice of council (ie reliance on the OLC memos) by the interrogators excluded in a pre-trial motion.
If, as a matter of law, absence or presence of a legal advisory opinion has no bearing on guilt or innocence, then the jury would have no reason to hear about it - at least until the sentencing stage, when I believe (under Nuremburg) it may mitigate the penalty.
About mens rea, (intent) I'm a lot unsure about whether this isn't satisfied by the intent to do the acts, ie: intent to waterboard, intent to place in a confinement box, etc. In contrast, the excuse "I didn't intend to torture because I believed based on the OLC memo that the acts were not legally torture," - I think this is more in the realm of being mistaken about the law, and we all know ignorance of the law is never an excuse.
I could be wrong... I am a lawyer but long time since I've dealt with these issues. The goal in all this of course would NOT be to ram interrogators through to trial, but to instill enough doubt that they accept immunity (and cooperate) in order to build the case against the authorizers of the program. Again, I don't think that'd be tough to achieve. No lawyer would advise their client to refuse immunity.
Suppose you did prosecute the agents, forcing them to reveal the precise nature of the torture tactics used.
Suppose you did prosecute the agents, and you revealed they had stopped, let's say, a half dozen terror plots.
Would you want to be the AG who risked a verdict of Not Guilty, while guaranteeing inflaming the entire Muslim world with the twin hit of telling them "yes we did this" AND having Al-Jazeera televise them walking out into the bright sunshine, scott free?
I think the whole matter is odious and speaks poorly of the entire American justice system and if I was an AG, I'd take the chance because this is America.
But I can understand the other side's POV.
So, is this the pathetic state in which we find ourselves--no matter how grievous or heinous the act, if "the government" tells us to do it, then we should just do it and damn the morality? We send the common soldier onto the battlefield into situations with far less time for deliberation and self-examination--and for damn sure far fewer opportunities to cover their asses--than these well-educated CIA torturers. Yet, every soldier has orders ultimately to rely on his own sense of decency and common sense, his own moral compass--Americans had such things once--to decide if he is being asked to do something that is WRONG. Amazingly simple directive that one.
Why did Patton (I think it was) force the good people of Auschwitz village to walk through the piles of bodies and ashes to see what had been done on their behalf? For goodness sake, he came down awfully hard on people who "had nothing to do" with the atrocities. Of course he was hard on them and rightfully so, because just as there is not a person--either who ordered or conducted torture--who did not know that their endeavour was simply wrong in the most basic and human sense, each of those villagers, to a one, knew that there was a hell on earth just down the road and, damn it, they should have done something about it.
Your attempt by the way to draw a distinction between what we villified at Nuremberg and what happened here is pathetic. The Nazi's had all the legal protections and promised coverage as our torturers did. You seem to try to say, " but that was the Nazi's and we're us." I'm sorry, pal, but torturers and torture apologists like yourself have effectively destroyed any hope we might once have had of the moral high ground.
Two final points: I don't know you but you do not strike as a person of principles. Otherwise you would never had tried to make the point using the example of the Supreme Court having ruled in favor of torture as an indisputable justification for atrocities. A person of principle would not brook the President himself attempting to lead him into doing what clearly was wrong and unAmerican.
Finally, I hope you'll stick around because the day will soon be upon us when terrorists capture some young, uneducated serviceman and send us pictures and video of him receiving the same treatment you are so desperate to find a way to excuse. The parents of this poor soul will surely look to such brillaint minds as yours to explain how this could have happened.
Sign me NOT anonymous,
Ken Hardy
Sarasota, Florida
I think Mr. Hardy has performed a useful service in clarifying the moral theory on which the Nuremberg analogy is based. Nuremberg, after all, is not a “precedent” in any legal sense since it consisted of an extra-legal process which, by its own terms, was applicable only to persons affiliated with the Axis powers and involved judging those persons in accordance with ex post facto laws largely invented for the occasion. The tribunal consisted of judges representing the four principal victorious powers (the Soviet representative had previous experience with Stalin’s show trials) and there was, of course, no jury or judicial review. From a due process perspective, Nuremberg would seem to compare unfavorably with the much-criticized military tribunals of the Bush Administration.
But the point of the Nuremberg analogy is not to make a legal argument, at least not a coherent one. It is to suggest a moral equivalence between the acts of the Nazi regime and the acts of the Bush Administration. One can criticize the interrogation methods approved by the Bush Administration without accepting this equivalence, just as one can agree with the pro-life position without accepting the view of those who would equate legalized abortion with the Holocaust. I submit that the Nuremberg analogists are at least as deranged as those who would make that equation.
Perhaps such derangement explains why Mr. Hardy seems to think that Al Qaeda and its ilk have previously been in the habit of treating captured prisoners humanely. He seems to be blissfully unaware of the fact that jihadists routinely torture and execute their captives, military and civilian, in gruesome fashion. Waterboarding would be a big step toward civilization for them.
The key point is that this is a moral debate masquerading as a legal one. If one believes that what the CIA did to detainees is so far beyond the moral pale as to be comparable to Nazi atrocities, then one will look for any legal “hook” to bring the malefactors to justice. As I noted before, Obama has not made this judgment. Instead, he appears to have concluded that the CIA was attempting in “good faith” to get information needed to prevent another terrorist attack. I think that he is using “good faith” to mean more than just good faith in the legal sense, i.e., objectively reasonable reliance on a legal opinion. He is also referring to the fact that the CIA was attempting to get vital information from hardened terrorists who were reasonably believed to be planning more attacks against the U.S.; it was not trying to inflict suffering for its own sake or to obtain revenge, satisfy sadistic impulses or terrorize political enemies.
If one views the CIA’s actions as involving moral complexity, it is relatively easy to approve Obama’s decision. Pragmatic considerations also undoubtedly played a role. As commander-in-chief, it is not in Obama’s interest to have foot soldiers question whether they may be later prosecuted for doing their jobs. For example, those responsible for drone missile strikes in Pakistan, which have reportedly killed a number of civilians, might start to wonder whether it will someday be “discovered” that these actions are illegal and whether there could not be just as much moral outrage from the deaths of innocent women and children as from the suffering of a handful of high ranking Al Qaeda detainees.
If, however, one chooses to follow Mr. Hardy down the Nuremberg analogy path, one should not be surprised if one ends up at the logical conclusion. If the Bush Administration is the equivalent of the Hitler regime, then Obama is presumably our Admiral Donitz, deserving of a similar fate, along with Members of Congress who went along with the Bush Administration’s policies. Everyone at the CIA who knew of the enhanced interrogation program, whether or not they played any direct role, would have to be fired at a minimum. People like A.L. are rightly denounced as “collaborators.” And the American people are properly frog marched through our own little Auschwitz.
Much of the argument on this thread is focused on whether the Obama administration “could” prosecute the CIA interrogators for violating the torture statute. Of course, it could prosecute them if it wished, and, while I am not certain about this, I suspect that AL is right that it could get the charges to a jury. In any event, it could certainly take administrative action against the interrogators.
But this sidesteps the real issue, which is whether the actions taken by the CIA were in fact evil. Obviously most people on this thread feel that they were. But citations to Nuremberg do not prove that point, and tend rather to show a lack of moral discernment.
IMHO.
MLS,
Since the missile strikes in Pakistan are individually approved, so it is said, by the CIC, and are carried out by military personnel (possibly under direct CIA supervision or with their collaboration), there is even less chance of prosecution. This is a straw man.
Of course, there is no reason a future congress, dominated by Republicans, might not choose to investigate, prosecute, or impeach, if recent history is any guide -- and for actions which are far less weighty than ordering predator drone missile strikes.
I've also seen the reasoning given that ByBee, et al, wrote their opinions out of fear that, if they didn't give the CIA free reign, and a terrorist attack took place, then they would have to explain why they "tied the CIA's hands".
One can understand this fear, after the career-ending mistakes made in the pre-9/11 days. That's sarcasm, in case you didn't guess. Oddly, those mistakes don't seem to have ended any careers -- except for the people whose warnings weren't heeded. The bureaucrats who denied the requests got by just fine.
The only thing Bybee had to fear, it seems to me, was that he would not, if he refused, be put up for a judge-ship. I don't think that's a desideratum for the kind of person we want in a judge, but perhaps you, like Bush, have a different idea.
I would think the cases in which the US prosecuted others for waterboarding would be better than Nuremburg, but that's a legality. Morally, Nuremburg is an obvious analog -- and the comparison stinks.
Nuremburg was originally offered as an analog for the rather thin reason that it established a precedent for the treatment of national security officers who were 'acting in good faith' and following the orders of their superiors. While I agree that 'following orders' and 'acting in good faith' are not defenses for criminal behavior under color of authority, mls has done an excellent job of pointing out many of the flaws of the Nuremburg analogy, as I myself have endeavoured to do repeatedly.
This is a case of crime under the color of authority, of corruption, and of the use of the latter to protect the former. In that the Bush Administration chose to disregard the law in a manner that can only be called a criminal conspiracy, I again assert that RICO is the best precedent to follow rather than to attempt to stroll down the 'war crimes' path. 'War crimes', like it or not, is a subjective and pejorative label applied to losers by winners. Even when the military prosecutes its own people for human rights violations during conflict, it does not call them 'war crimes.' War is a crime, period. There is now way to pretty it up.
The issue of violence under color of authority is one that should be taken seriously by all Americans regardless of political views, and to politicize this issue with labels like 'war crimes' only serves to prevent the discussion of the real issue. Do we want our government to be able to legitimately do violence to its PRISONERS?
mls raises the issue of what Al Qaeda does to its own prisoners. That is as much a distraction from the real issue as the label of 'war crimes.' The question is not what Al Qaeda does to its prisoners. The question is how America treats its prisoners.
America is not Al Qaeda, and for mls to suggest that America should somehow live down to Al Qaeda's standards offends me.
I would suggest you read both the U.S. Constitution on treaties, and second read the transcripts of the Nuremberg trials of 1945-46 on NAZI prosecutions, particularly the legal standard for war crimes and crimes against humanity known as he Nuremberg Doctrine that emulated from them Adolph Hitler’s inner circle and even the lowest subordinates of the SS were not immune to all those for whom we judged and executed. To hold other nations accountable for which we will terminate a life form, for which we ourselves exempt ourselves is tantamount to renegade lawlessness akin to a rogue state with disgrace and dishonor.
"The OLC doesn't have the power to immunize you from prosecution. All they can do is issue opinions. But their opinions carry a lot of weight given their traditional role in the executive branch." Isn't it OBVIOUS now that the OLC was not fulfilling it's "traditional" role? Anything but, it seems utterly without question that these OLC memos were a sham...a knowing and illegal scheme to write memos legalizing conduct the criminals wanted to (and already had( engaged in, and NOT a good-faith legal opinion meant to explain what the law is.
You make it sound as if we have no laws anymore....if the OLC says it's legal..it's legal. HUH???
[M]y point was that these cases would inevitably go to jury trial and, as a former prosecutor, I find it almost inconceivable that a jury would vote to convict under these circumstances.Shorter Anonymous Liberal: "Confident defense in United States v. Yoo asks, 'What could possibly go wrong?'"
You argue the Administration fears acquittals at trial; perhaps so, but I expect their fear of convictions is far greater.
E.R.- my reference to Al Qaeda was not to suggest that we should emulate Al Qaeda’s conduct. It was a response to Mr. Hardy’s assertion that we should prosecute CIA officers in order to prevent Al Qaeda from emulating us.
I don’t know what you mean by using RICO as a “precedent.” If one made the decision to treat this subject as one for criminal investigation and prosecution, there are a number of legal theories that a prosecutor might consider. RICO could be one of them. But RICO is not relevant to the fundamental question of whether this ought to be treated as a criminal matter in the first place. Nor is it relevant to whether the CIA officers were morally culpable.
As I noted before (and no one here has disputed), Obama has decided these questions in the negative. You and others seem to believe that it is self-evident that he is wrong, but do not deign to give actual reasons for your opinion. I simply observe that it is not self-evident to me.
C2 says “Since the missile strikes in Pakistan are individually approved, so it is said, by the CIC, and are carried out by military personnel (possibly under direct CIA supervision or with their collaboration), there is even less chance of prosecution.” Are you saying that if the missile strikes are illegal (which one could argue that they are, particularly under international law), that it is ok because the CINC approves them? All I can gather from your remarks is that there is no need for logic or consistency in the application of the law. Since the evil Republicans can be expected to act in an arbitrarily partisan fashion, why should you be held to a higher standard?
Anonymous- if your point is that we can be accused of hypocrisy for not following the “principles” enunciated at Nuremberg, I think that ship has already sailed. After all, we charged the Germans with war crimes for invading Poland, while their co-conspirator (the Soviet Union) sat in judgment. Apparently the legal principle was that one should only start wars of aggression from the east.
MLS,
When I said the missile strikes are even less likely to result in prosecution -- that's what I meant. I thought that was pretty clear, BTW.
I never said missile strikes were OK, and to pretend that I did is a strawman.
Since you brought it up, though -- lacking information -- or any way to get that information -- I provisionally accept their necessity.
I reserve the right, should later information come to light that indicates that these strikes were conducted without concern for the loss of innocent life or occurred without approval, to call for the prosecution of those responsible.
This is fundamentally different from the issue of torture of detainees.
I expect the military to shoot missiles at people and things. It's what they do.
I expect our "intelligence" service to use proven and legal methods for acquiring information. Torture is immoral, illegal, and doesn't work. The use of torture under the Bush administration clearly indicates an intelligence community riddled with incompetent, amoral bureaucrats whose primary interest is in avoiding having to pay for their incompetence and illegal activities.
mls - Torture is wrong, that IS self-evident. It bothers me that people cannot recognize that fact.
More important to the present argument, torture is illegal. A politically motivated legal opinion saying that torture is not torture does not make torture legal, nor does it make acts of torture cease being acts of torture.
I understand the political expediency of not wishing to pursue criminal charges against national security professionals and Bush administration officials. I have even made statements, on other blogs, that President Obama is probably right (in a purely political sense) not to pursue prosecutions that would end up being the defining issue of his presidency to the exclusion of necessary policy reform. That does not stop me from wishing it were not so or having strong opinions about how it should be handled.
The RICO argument I have advanced has nothing to do with whether this out to be treated as a criminal matter, per se. RICO is merely the category of criminal law into which an organized criminal conspiracy falls. This should be treated as a criminal matter because, as I said, torture is a criminal act and a politically solicited legal opinion saying torture is not torture is legal malpractice.
I read somewhere today that since the CIA is a civilian agency that "just following orders" doesn't have the same import since a CIA agent could resign (as opposed(?) to this twist: some conservatives had said that since Bush was the "Commander in Chief," the phone companies were "just following orders" and shouldn't be prosecuted for illegally tapping our communications -- but I digress).
This is true. CIA officers can resign at any time, cannot be charged with a crime for refusing to follow orders in same way as military personnel, and have a great deal of latitude in accepting or refusing assignments. No one working for the CIA has no choice but to torture someone just because someone tells them to torture someone. This is actually a very good point.
Of course, the issue of culture becomes important. Just as the culture of Wall Street promotes certain mis-assumptions about what makes a 'winner' that entail massive risk to the economy, so the culture national security establishment promotes certain mis-assumptions about the virtue of some of the less virtuous aspects of the profession that entail significant risk to the nation.
While it is hardly new, of particular interest to the torture discussion is CIA officer John Stockwell's 1978 book 'In Search of Enemies' about CIA intervention in the politics of Angola during the Ford administration. While Stockwell's views are certainly not objective or unbiased, his assessment of Agency culture is very revealing.
"Moreover, intelligence officials would never trust OLC legal advice again, which is a problem given the many very necessary and very legitimate things we ask these people to do."
This seems a little quick. Why would prosecuting intelligence officials for following the bad OLC legal advice necessarily lead them to not trust OLC advice in the future?
In Jane Mayer's The Dark Side it is made clear that the CIA believed OLC memos to be "golden shields" that granted immunity to any CIA actions, apparently without regards to the basic merit of the memos or whether they were written in bad faith. Prosecuting everyone down the line would set the precedent that OLC memos are not, in fact, "golden shields" IF they are written in bad faith or contain F- quality legal reasoning. This would cause the CIA to have an institutional interest in making damn sure that the OLC's lawyers are not completely fraudulent. So long as the CIA had confidence in the professional integrity of the OLC there would be no reason for intelligence officials to not trust OLC's advice. And intelligence officials would push for there to be transparency and widespread review of OLC memos precisely to ensure that they meet basic standards of professional competence.
Moreover, maybe if Woo and company thought that their legal memos would be powerless to protect anyone if they were found to be sufficiently awful, then they never would have tried to issue them in the first place.
I'm still conflicted on this issue and recognize that there are many good points that AL raises in defense of the idea that we shouldn't prosecute the grunts, but I think this whole "the CIA will be paralyzed because it can't trust the OLC" angle is overblown.
I think we should focus on the fact that if the CIA cannot trust the OLC because of this cycle of events, prosecutions or not, it is not the fault of prosecutors. It is the fault of the pandering of OLC attorneys to the political officials of the DOJ and White House.
Certainly, members of government agencies should be able to trust the legal opinions of the OLC. However, when those legal opinions are politically solicited out of the mistaken belief that such opinions have the force of law, it is immediately clear that they cannot be trusted. At this point, the CIA should have known better than to trust them.
The real problem is that there is a never-fully-extirpated culture within the US national security apparatus that advances a righteousness of purpose that transcends law or accountability. Anyone who truly believes the 'good faith' argument should look at the CIA's history of blatantly illegal behavior without benefit of OLC 'golden shields.'
Individuals have moral judgment and we have prosecuted government employees for failing to exercise their moral judgments in the past. The Bush administration was (and is, after the fact) attempting to establish a new precedent of executive authority to counterweight the precedents of Watergate and Iran-Contra.
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