Balkinization: What Should Mukasey Do?

Comments:

Mukasey's taking the steps you propose would be better than his not taking them, but, no, it would not be "the only decent and true and civilized course of conduct." The only decent and true and civilized course of conduct would be for him "to take a stand on the other forms of unlawful conduct (e.g., stress positions, threats, hypothermia, severe sleep and sensory deprivation) that President Bush reportedly has authorized," and to state that he will prosecute all, including President Bush, who authorized or engaged in waterboarding and other forms of unlawful conduct. I do not understand why you seem so enthusiastic about confirmation of an attorney general merely because he acknowledges that waterboarding is illegal, but who will not condemn other forms of torture and who asserts that the President is above the law. Mukasey's conceding that waterboarding is illegal would be a symbolic victory at best.

# posted by

Henry : 9:39 AM

My final sentence is an overstatement; if Mukasey conceded that waterboarding is illegal and was willing to prosecute those who commit the crime, then some people would be spared from waterboarding. Bush would have to use other methods of torture.

# posted by

Henry : 9:43 AM

Marty,

One pertinent point to the issue of prosecution of torture:

Immunity from said torture prosecution was included in the Warner/McCain/Graham "It's Ok to Torture Bill" at this time last year.

That bill was passed by the then Republican-controlled Congress and signed into law by Bush before the Nov. 06 elections.

Anything Mukasey says regarding torture will not cause legal jeopardy for actions taken by this Administration in the past, much as such jeopardy is deserved.

# posted by

Mad Dogs : 10:04 AM

Such a prosecution would, in my view, violate due process to the extent such reliance were reasonable

IANAL, but I've lived my entire life under the impression that, under international law (based on treaties signed - and in some cases initiated - by the US), "following orders" is not a valid defense for war crimes and crimes against humanity.

Surely, reliance on legal advice must be even less valid than following orders, because one who merely relies on legal advice, but otherwise acts willingly, is acting under far less (if any at all) coercion than someone who acts under orders by his superiors.

(And yes, I understand that both defenses could be applicable simultaneously, but "following orders" remains the more compelling one, so if that one is invalid, the "reliance on legal advice" must be invalid, too.

# posted by

Gnash : 10:33 AM

Commenter cboldt has pointed out frequently that the amended torture statute restricts "severe physical suffering" to cases of "bodily injury," and that this appears tailored to exclude waterboarding.

Mukasey could then testify that, under the law enacted by Congress in 2006, waterboarding is not torture, and put the ball back in *their* court.

# posted by

Anderson : 10:52 AM

Anderson: The torture prohibition, 18 USC 2340-2340A, has not been recently amended, and does not require bodily injury.

# posted by

Marty Lederman : 10:58 AM

The real question now is, "What should the Judiciary Committee do?," and the answer is that it should reject Mukasey. Bargaining over torture methods -- we'll give you the other torture methods if you give us a prohibition on water-boarding -- must be out of the question.

As for Mukasey, he should declare the illegality of all the torture methods, and the other forms of cruel and inhuman treatment, and he should vow to prosecute those who authorize or carry out such methods. The vow to prosecute should at least cover future violations, though I am convinced it should cover past violations as well. What Mukasey should do does not rest on what he is likely to do.

# posted by

Jamie Mayerfeld : 11:08 AM

Prof. Lederman:

There is no possibility -- none -- that the Department of Justice would ever prosecute anyone who acted in reliance on OLC's legal advice about what techniques were lawful. (Such a prosecution would, in my view, violate due process to the extent such reliance were reasonable;...)

Legal advice that something is legal, in and of itself, does not suffice to indemnify one from criminal culpability (and if it were so, that would be a windfall for the likes of Fredo, not to mention any Mafia dons). And that the office giving "legal advice" is the OLC makes no difference. If the crime is one of "specific intent", you may be able to escape the reach of the law depending on what the requisite "specific intent" was (as opposed to "general intent" crimes which require only that you intended to commit the act, not that you had any specific purpose in mind).

But the "specific intent" for "torture" (18 USC § 2340) is:

"Section 2340. Definitions

As used in this chapter -
(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;"

The requisite intent when committing the acts in question is that that the acts "inflict ... pain or suffering". That you intend to break the law is not part of the equation (arguably unlike some "SI" crimes that require "corrupt intent"), so someone telling you that you aren't breaking the law should not be a defence.

But you're right. This DoJ won't prosecute anyone for such and if anyone does (such as a special counsel), Dubya will pardon them.

Let's be honest; if you can't figure out that "inflict[ing] ... pain and suffering" might be wrong, you perhaps ought not be working for the gummint.

Cheers,

# posted by

Arne Langsetmo : 12:07 PM

That fear, however, is unfounded. There is no possibility -- none -- that the Department of Justice would ever prosecute anyone who acted in reliance on OLC's legal advice about what techniques were lawful. (Such a prosecution would, in my view, violate due process to the extent such reliance were reasonable

Occasionally, Professor Lederman's bias from having worked for OLC shines through. No, OLC opinions have no legal force and effect, they don't immunize illegal conduct, and it's perfectly constitutional to prosecute people who relied on their lawyers' advice.

It's the province of the judiciary to say what the law is, not OLC. OLC gives advice, the executive branch can decide to take it or not, and it's up to judges to decide whether that advice was correct.

# posted by

Dilan : 12:25 PM

"Mukasey's conceding that waterboarding is illegal would be a symbolic victory at best."

I concur esp. given Henry's edit assumes the unlikely that prosecutions will ensue. Likewise, waterboarding being torture in no fashion assumes that it is the sine qua non of torture and that these 'other techniques' won't in full measure be worse.

Thus, I don't see the big value of him admitting this, surely if we take ML's full post as true. It's symbolic. The concern is torture, not just one measure.

On some level, it might actually make things worse by assuming something really was done.

# posted by

Joe : 1:24 PM

I don't see the big value of him admitting this ... It's symbolic. The concern is torture, not just one measure.

I'd go further. The bigger concern, horrific crime though torture is, is Mukasey's position on presidential powers. The Washington Post reported:

"Mukasey suggested that the president can ignore a law, including the surveillance act, if it unduly impinges on his constitutional authority as commander in chief during wartime."

No one who holds this view of executive power should be confirmed as Attorney General. Period.

# posted by

Nell : 3:44 PM

Mukasey has said that torture is unconstitutional. I don't really understand how OLC opinions that are unreasonable on their face and violate the constitution and were written for partisan and presidential pandering, and not for true advice, can or should insulate criminal acts from prosecution.

Institutionally - the DOJ is nothing more than a corrupted appendage and nothing will rise from the ashes unless the next AG (not Mukasey - the next real AG) commits to criminal prosecution of egregious criminal activity - preferrably via a special prosecutor.

I can only hope that you are very wrong on the opinion that all it takes to insulate depravity from accountability is a piece of paper from a hack in OLC. What did Nuremberg stand for, if not that "following orders" isn't a defense for doing the indefensible?

In any event, Mukasey's other problem in saying anything on the torture front is that once he says it is illegal, it also pulls it out of the arena for protection by classification. At least, pursuant to any ordinary understanding of the current Executive Order on classification and the Nixon case and the Constitution.

That makes for a big morass. I'm also waiting for the backfire.

If Mukasey stays mum, which is likely, or if he were to say it is not "necessarily" torture (the Giuliani approach) and he is not confirmed, then what?

Pretty much opens the door for Keisler to stand up as acting AG (maybe he even does this before Mukasey answers) and say that the position of the AG's office is that waterboarding is not always torture and is not unconstitutional or criminal.

Then what?

Then we just have the open acknowledgment of where we are - and that is a place from which there is no point of return, unless someone in a later administration does pursue criminal charges, OLC paper or not. I wanted, back in 2004, for this to not be the case, but no one came forward then with any contrition for their depravity. Now, I can't imagine how you have people doing these things for years and with no remorse other than the slight frisson that went through them after the Hamdan case, and say, still, even now, that they are inviolate because of Yoo and Bradbury.

If so, the whole thing really is lost and DOJ isn't an institution worth saving.

# posted by

Mary : 5:04 PM

Perhaps they could get him to comment on this new Guantanamo whistleblower:

http://news.independent.co.uk/world/americas/article3101949.ece

Carrying water on the topic of torture, isn't filling me with confidence about this guy.

# posted by

Al Swearengen : 9:54 PM

Marty,
For several years now you have opined with a kind of certainty that there is no way that a prosecution would occur. And each time you talk about reasonable reliance on OLC opinions. But that always seems to beg the question in a conspiracy setting where the OLC opinion is precisely part of the effort to break the law. As to the institutional reasons, those to me are always the arguments "we never done this before". In case you did not see this a request to prosecute Rumsfeld was just filed today in France for torture. Having lived in France, I assure you that Rumsfeld would prefer to be going through the US system over the French system. But, if we are not willing to do it, clearly there are other states willing to take a look at it under their rules - particularly ones that permit the partie civile as does France.

Tomorrow afternoon here at the International Law Weekend we will be studying such U.S. domestic court prosecution.

Best,
Ben

# posted by

Benjamin Davis : 11:26 PM

I agree with Benjamin Davis (I think) in wondering whether you may be misunderstanding Mukasey's true concern. It's not for the guy who was just following orders. It's for the people who told him those were OK orders just to follow -- it's for people like Yoo at the OLC. They were and are war criminals, it seems to me, with US v. Altstoetter as the precedent.

# posted by

Thomas Nephew : 11:39 PM

-- The torture prohibition, 18 USC 2340-2340A, has not been recently amended, and does not require bodily injury. --

.

What's recently amended is the War Crimes statute, 18 USC 2441.

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Before the MCA was passed in Sept 2006, 18 USC 2441 made reference to the Geneva convention, but did not make reference to 18 USC 2340(2) [notice, on the "(2)" provision, for definitional purposes) and 18 USC 113, which points to 18 USC 1365.

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Using 18 USC 2340(2) and 18 USC 1365 to define war crimes is new.

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18 USC 2340(2) just defines "severe mental pain or suffering." I agree it does not require bodily injury. But the threshold for "severe mental pain or suffering" is pretty darn high, given the need for the mental effect to be both prolonged and severe.

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18 USC 1365 defines "serious bodily injury"

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18 USC 2441 (as recently amended) defines "serious physical pain or suffering." This definition includes as one of its elements, "bodily injury." Pain without bodily injury (where the new statute also defines the extent of bodily injury necessary before finding serious physical pain or suffering.

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The point I've been asserting is that a good faith argument, and likely the technically correct one to boot, can be made that waterboarding crosses none of these new statutory thresholds.

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18 USC 2441 (as recently amended) also contains a contradictory proscription (no conduct in violation of Geneva Convention -- cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States), but that proscription (Additional [[NOTE: 42 USC 2000dd-0.]] Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment) has no criminal penalty attached to it. Enforcement of this proscription is at the administration's discretion as an administrative matter.

# posted by

cboldt : 12:29 AM

Fixing a sentence/thought fragment, and copying the statutory text ...

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Under the recently amended criminal statute for war crimes, pain without bodily injury (where the new statute also defines the extent of bodily injury necessary before finding serious physical pain or suffering) cannot be "serious pain," let alone "severe pain."

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18 USC 2441 (d)(2)(D) the term 'serious physical pain or suffering' shall be applied for purposes of paragraph (1)(B) [cruel and inhuman] as meaning bodily injury that involves--
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty

# posted by

cboldt : 12:37 AM

Every day of this presidency has been torture as far as I'm concerned, causing suffering which has been severe, intense, of extended duration, and persistent.

# posted by

greg : 12:40 AM

At least one Senator is not buying into the distracting dodge of whether waterboarding is torture, and seizing on the central issue that should prevent Mukasey's confirmation if we didn't have an imperial-Rome-style Senate:

Bernie Sanders: Mukasey should not be confirmed because he could not muster a simple, straightforward answer at his confirmation hearing when he was asked the simple, straightforward question: Is the president of the United States required to obey federal statutes?

"That would have to depend," he weaseled, "on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country."

# posted by

Nell : 12:43 AM

The recently revised statutory scheme has an internal inconsistency that makes it easy to BS around, and makes it difficult for people to understand the law, let alone accept it. It is aslo fetile ground for arguing in circles, because the opponents can pick which section they prefer to focus on, while ignoring the other section. "Is too illegal" "Is not."

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Under the criminal violations section (definitions of prosecutable war crimes), waterboarding probably fails to cross the line. That doesn't make waterboarding constitutional, it just makes it "not to the level of torture as defined in the war crimes statute" and "not to the level of cruel and inhuman as defined in the war crimes statute."

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At the same time, a different section of the statute is properly construed such that waterboarding is unconstitutional and forbidden. However, in this section, there are administrative penalties but no criminal penalties.

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This relationship between "not prosecutable as a war crime" (some might say "not illegal," but it's illegal AND unconstitutional under a separate provision in the law), yet unconstitutional because it's cruel and unusual under the US constitution is a sure cause of something resembling cognitive dissonance -- it's a big fat disconnect from the way we usually think.

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Read 18 USC 2441 for yourselves. Sec. 6 IMPLEMENTATION OF TREATY OBLIGATIONS.

# posted by

cboldt : 1:01 AM

.. stress that CIA operatives will not be prosecuted for having previously acted in accordance with the legal conclusions of OLC and the President. <...>

Simple question. Can Syrian torturers claim immunity from prosecution because everything they ever did was always authorized by their OLA? What about those who tortured upon Hussein's authorization?

The obvious and emphatic answer is no. Both the torturers and those who provide legal fig leaf for them are criminally responsible. Otherwise we are back to the Dark Ages.

---

So Mukasey is in a difficult position here. No easy way to fulfill his primary responsibility which is to provide some immunity to CIA torturers and their superiors*.

I see only one possibility and that is to claim that torture was actually never illegal in the US.

On following grounds - The only prohibition against torture in US statues is contained in 18 USC 2340A which reads:

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

The operative word here is "outside the US". There is no equivalent prohibition on torturing "inside the US" anywhere in US statues.

So just claim that waterboarding and other assorted tortures were performed in US facilities (to remain unidentified because of security) as defined by 18 USC 2340. For nitpickers claim Guantanamo, African and Eastern European facilities were always de-facto "inside the US" as no legal laws ever applied there.

Their only intellectually honest option.

---

* It is with some satisfaction that I see the Cheney/Bush administration growing more and more desperate with every passing day about ensuring some immunity for their deeds. And I'm not surprised. So let's just stay cool and collected, being desperate they are liable to play this closing game badly.

# posted by

wg : 3:47 AM

Thanks for all the thoughtful comments, everyone. A few quick responses:

1. Cboldt, I agree that it would be much harder, after the MCA, to prosecute waterboarding as a domestic war crime under 2441 -- indeed, I complained about this at length back when the MCA was being considered. See http://balkin.blogspot.com/2006/09/three-of-most-significant-problems.html

and

http://balkin.blogspot.com/2006/09/hate-to-rain-on-torture-parade.html.

See also my colleague John Mikhail's post here:

http://gulcfac.typepad.com/georgetown_university_law/2006/09/common_article_.html

But it remains torture under 2340-2340A. The MCA definitions do not change that; and I would not read the definitions of torture under the amended WCA to reflect a later-enacted congressional gloss on 2340-2340A. It also remains "cruel treatment" prohibited by CA3, as I explained in the second of those posts listed above.

Having said that, I can well imagine that there's an OLC opinion saying otherwise, alas . . .

2. I have not argued that "following orders" is always a defense to criminal prosecution. I have only said that *reasonable* reliance on the official legal interpretations of the Justice Department, i.e., OLC, would constitute a due process defense.

3. I have been careful *not* to argue that it would have been "reasonable," for purposes of the due process clause, to rely on OLC advice that waterboarding is lawful. Nevertheless, I think it is well-nigh inconceivable that the Department of Justice would ever prosecute a CIA operative who acted in accord with that advice. That's an institutional precedent that any AG, of any party, would be loathe to set.

4. As Benjamin Davis and Thomas Nephew point out, however, perhaps Mukasey is less concerned with criminal exposure of the CIA interrogators than he is in protecting John Yoo and others within OLC and DOJ who came up with the immunizing legal advice in the first place. Perhaps. But I doubt it, for two reasons. First, unless there's a smoking gun memo out there somewhere showing that John or others did not really believe the advice they were giving, and that they were simply trying to justify conduct that they knew to be unlawful, I think it's inconceivable that DOJ would ever prosecute them, either. And I strongly suspect that there is no such smoking gun because John, and Jay Bybee, did actually believe the advice they were providing was legitimate, possibly even "correct." Second, to the extent there really was a conspiracy within OLC and elsewhere to authorize *known* unlawful conduct, I doubt Mukasey would be so intent on protecting such persons. He doesn't seem the type. I might be wrong about this, of course; but I hope not. At any rate, as I've said, I doubt this is a real concern because, sadly enough (and hard as this may be to believe), I think the providers of the 2002 and 2004 OLC advice probably believed in what they were writing. Or, in any event, there's unlikely to be evidence to the contrary.

# posted by

Marty Lederman : 4:34 AM

I love the way Marty keeps excluding this person and that person from potential prosecution. Because the 'DOJ would never do that'. I think he is right by the way, but I doubt he thinks the implications of those decisions mean the same thing I think they do.

# posted by

jme : 6:29 AM

There is no possibility -- none -- that the Department of Justice would ever prosecute anyone who acted in reliance on OLC's legal advice about what techniques were lawful. (Such a prosecution would, in my view, violate due process to the extent such reliance were reasonable

By the same reasoning, wouldn't it violate due process to allow civil suits against telecommunications companies that acted in reasonable reliance on the federal government's assurances that it could demand the production of certain terrorist-related call-detail records?

# posted by

Stuart Buck : 9:51 AM

Some comments argue that it simply is not "reasonable" to follow the opinions put forth by this executive. Qualified immunity is probably overused these days, but this is another matter. Thus, the "due process" defense is limited.

As to CIA operatives, ML is surely correct (as of now), though given the first point, this suggests a pretty sad reality of "anything goes" as long as some official understanding (again, one many think is simply garbage) is in place to justify it. I assume this even means if the reasoning is not even of your own administration.* The negative emotions this raises (starting with embarassment) are many.

As to "mental effect" etc., cbolt's argument as to a reasonable interpretation of the law as to waterboarding, my reply would be that simulated drowning (or even the threat) WOULD have long lasting significant mental effects.

Consider the lasting effects of a crime victim, for a brief robbery. The fear this raises can be quite severe, including being afraid even to leave their home. Would not choking be comparable? How could it not lead to severe long lasting mental anguish?

I might be missing something.

---

* Charles Fried was on Bill Moyers yesterday, and one of various questionable things he suggested was that with new political leadership, the abuses of the Republicans will be checked.

Glenn Greenwald and others would disagree. And, ask Fried's Republican friends if they thought the executive was fine under Clinton. Bad things will be done by future administrations too, if we give them the opportunity.

# posted by

Joe : 10:30 AM

As to waterboarding, I would add that the situation would only emphasize the effects.

It is not like the person is "simply" waterboarded and nothing else. It would be part of a range of things that will be physicially and mentally stressful, including with long lasting effects in both areas(this is btw one fear, since this can lead to blowback, as shown in Egypt etc.).

This goes back to my first statement too. This is about a lot more than waterboarding. It also, see ML's comment too, why many deemed the MCA as inadequate. The fact some cannot do the bare minimum cannot, though sadly I fear it will, lead us to accept only the bare minimum. Or, even a bit more, still a lot less than is warranted.

# posted by

Joe : 10:38 AM

By the same reasoning, wouldn't it violate due process to allow civil suits against telecommunications companies that acted in reasonable reliance on the federal government's assurances that it could demand the production of certain terrorist-related call-detail records?

In the telecom case, the District Court found that their reliance was NOT reasonable.

That brings me to this:

I have only said that *reasonable* reliance on the official legal interpretations of the Justice Department, i.e., OLC, would constitute a due process defense.

Orin Kerr has argued this as well, treating the defense as a form of estoppel. I understand how such a doctrine could apply to private citizens who rely on governmental advice. But it can't be an automatic defense in any case, as the telecom results show, and as should be clear from policy considerations as well.

Policy first. The basic problem is one which most posters here have noted repeatedly during the last few years: that there's a bootstrapping quality to any such defense. In essence, it would allow government employees to immunize themselves simply by finding some thug like John Yoo eager to "justify" what they want to do.

The doctrine of estoppel, in all of its various manifestations, rests on a sense of fairness: a party should not be permitted to say or do something on which someone else reasonably relies in performing an act, only to have the first party complain about the act of the second. The doctrine has no application when there aren't really two parties at all, but only one. At the higher levels of the Administration, this identity of parties seems particularly clear.

There's also the issue whether any such advice could have been followed reasonably. Prof. Lederman's paragraph 4 implies that an actual conspiracy need be shown in order to overcome the supposed defense. I don't think any defense provides such protection; certainly this one does not. What we're discussing is is an affirmative defense, which means the defendant has the burden of proving its elements. Any government official who wants to rely on it should have the burden of showing that the facts made his/her reliance reasonable. For which, note the first sentence of Prof. Lederman's paragraph 3.

# posted by

Mark Field : 11:20 AM

Thanks for the explanations on waterboarding & the law, Prof. Lederman & cboldt. It's depressing just to think that the laws on these matters are as convoluted as they are.

# posted by

Anderson : 11:26 AM

I have not argued that "following orders" is always a defense to criminal prosecution. I have only said that *reasonable* reliance on the official legal interpretations of the Justice Department, i.e., OLC, would constitute a due process defense.

I don't think that anyone is saying that you are arguing following orders is "always" a defense to criminal prosecution. There are probably two different issues on some of the abuse. One would be abuse that occurs without orders of a superior, and the other is abuse that occurs on orders. As an initial point, it would take the opinions to know whether they are saying that the sleep deprivation, beatings, etc. are all just fine to engage in, without orders, or if they are saying that orders to a subordinate to engage in those activities are legal orders.

But there were legal opinions for other war criminals as well. What you are saying is that an order that would be clearly deemed to be an order to engage in what any reasonable person would deem to be cruel and unusual punishment (prohibited by the Constitution whether or not it is "torture"); including activities like waterboarding where our own precedents include convictions of soldiers for war crimes for engaging in those activities, can be insulated by an OLC opinion and I don't see how it can.

If, but for that opinion, there would be clear crimes and abuses being committed such that "just following orders" would not be a defense in those cases, then that losing defense doesn't get reborn with an OLC opinion. An opinion can't insulate an order that goes where orders cannot go - the essence of Nuremberg is that no amount of papering and posturing insulates in those situations.

Finally, the other point being missed is that that there is a Constitutional prohibition on bills of attander - including penalties and punishments. This exists specifically so that it is acknowledged that there is no power in a President under the Constitution to have "perceived" enemies subjected to penalties, pains, punishments and death, on whim and without following the Constitutional requirements of due process and law.

No one seems to want to mention this element of the Constitution, although it is right on point with what was feared at the time and what is being done now. It exists separate and apart from Habeas and evena legitimate suspension of Habeas would not empower an Executive to engage in roundups, kidnaps and the related incidents we know about: kidnapping, stripping, drugging, chaining, beating, freezing, isolating, threatening with dogs, mock executions and in KSM's case kidnapping of his minor children and threats against them as well, etc. etc. etc.

Not only does the Constitution not empower the President to do such things, it specifically prohibits him from doing those things. Moreover, there is no attorney-client privilege between Bush's torturers/kidnappers/abusers and OLC, so how would the OLC opinion be protective? Is there even any evidence that the people specifically engaged in torture and abuse received their own personal copies of the OLC opinion?

I'm guessing not. How do they rely upon it in that instance?

fwiw

# posted by

Mary : 2:39 PM

Mark Field: In the telecom case, the District Court found that their reliance was NOT reasonable.

Can you provide a citation and pincite for that proposition? Thanks.

# posted by

Stuart Buck : 5:23 PM

The opinion is here (pdf). See p. 68, l. 15-18.

# posted by

Mark Field : 6:39 PM

Mark Field -- that's a ruling on a motion to dismiss, is it not? And what's the standard for assessing evidence when ruling on a motion to dismiss?

# posted by

Stuart Buck : 9:25 AM

that's a ruling on a motion to dismiss, is it not?

Yes.

And what's the standard for assessing evidence when ruling on a motion to dismiss?

The Judge's ruling was not evidentiary (though my original verb choice implied that), it was a legal determination that, in the Court's words, "AT&T cannot
seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal."

# posted by

Mark Field : 11:47 AM

But that's assuming that the very broad factual allegations in the complaint were true -- i.e., millions of domestic calls at issue, no statutory "certification" by the government, etc. Right?

# posted by

Stuart Buck : 12:08 PM

But that's assuming that the very broad factual allegations in the complaint were true -- i.e., millions of domestic calls at issue, no statutory "certification" by the government, etc. Right?

The Court was pretty careful to rely only on facts admitted by AT&T. For example (34:2-4): "As described above, public disclosures by the
government and AT&T indicate that AT&T is assisting the government
to implement some kind of surveillance program." On the specific issue of certification, AT&T's Motion to Dismiss argued (51:5-8) that "plaintiffs have the burden to plead affirmatively that AT&T lacks such a certification and that plaintiffs have failed to do so here, thereby making dismissal appropriate." The Court concluded (53:3-7) that it "need not decide whether plaintiffs must plead affirmatively the absence of a certification because the present complaint, liberally construed, alleges that AT&T acted outside the scope of any government certification it
might have received."

# posted by

Mark Field : 1:41 PM

On the certification issue, read that part again. I'm pretty sure that the court, was construing the plaintiff's complaint broadly (rather than requiring specificity in the pleading) and then taking that broad construal as true. It certainly didn't seem to be limiting itself to facts admitted by AT&T.

# posted by

Stuart Buck : 2:03 PM

I agree with that. My only point was that when the Court did consider factual issues, it generally limited itself to those which AT&T could not deny.

Since we seem to be getting deeper into the details here, I just want to get back to the original point. Your first post suggested that (paraphrasing) it could violate due process for the telecoms to be held liable despite receiving "assurances" from the government about the legality of their conduct. The Court's legal conclusion, which I quoted above, seems clearly to hold that AT&T could not reasonably have relied on any such "assurances".

Perhaps by "assurances" you meant "certification". If there were a certification, then that would certainly impact the statutory claims, though (as the Court noted) probably not the Constitutional ones. But mere "assurances" are not at issue and wouldn't provide any defense if they were.

# posted by

Mark Field : 3:30 PM

Well, it all depends on the actual facts (and I have no idea what those are). If AT&T got some assurance from the government that was on the level of an OLC memo, then I fail to see why Marty's due process reasoning wouldn't apply with equal force here.

Thus, Marty says that if the facts were such that there was reasonable reliance, it might violate due process to prosecute; I'm saying the same reasoning would apply to telecom companies; you're not disagreeing about the applicability of due process, you're just trying to leapfrog to the assumption that there was no reasonable reliance. All you've shown is that when a district court assumed the truth of plaintiffs' allegations that 1) AT&T was monitoring literally millions of domestic communications 2) without any certification or justification from the government, then in that circumstance AT&T shouldn't have believed the program was legal. But that's not a real point of disagreement at all -- it's just assuming a different set of facts.

# posted by

Stuart Buck : 4:04 PM

I guess I don't understand your original comment, then. It only makes sense -- to me, anyway -- that you were suggesting a due process defense to the facts as alleged. Obviously, if the facts were other than as alleged, all bets are off.

In the context of "the facts as alleged", the Court (not me) has already held that AT&T could not reasonably rely on "assurances" from the government. I seriously doubt the existence of an OLC memo would change this; AT&T is as sophisticated as a client gets, with high-quality legal advice available. What the District Court essentially said was that there simply was no legal argument to be made which would justify the alleged facts. IOW, there is, given the facts alleged, no due process defense available.

# posted by

Mark Field : 4:33 PM

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# posted by

Unknown : 5:34 PM