Given Mukasey's testimony of direct presidential approval of these crimes, I'm not clear why we're bickering over the legal status of whatever faceless peons actually carried out the policy.
 

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I don't pretend to be an expert in US law, nor of the laws of war and relevant conventions. I am an Australian lawyer and all I can say is that reading the tortue memoranda of advice reeks of contrivance.

The structure of the advices, the way they outline how the advice itself could be used in defence of alleged war crimes, and the absurd definition of torture, which is itself reached after a tortuos treatment of words to undermine their clear intent and spirit, are either the ravings of madmen (and I do not accuse the DoJ lawyers of this) or 'smart' lawyears weaving a safety net for the President, CIA and others and tailoring an advice to achieve the desired outcome without regard to its absurdity.

The DoJ lawyers who provided the relevant advices should be either charged with criminal neglect or criminal conspiracy. They are either stupid or criminal, and again I say I do not believe they are stupid.

In my ignorance of US and international law there may be Constitutional and other issues that I have blundered through, but I can't see how any honest lawyer could read those advices and not conclude that the author was hell bent on arriving at a particular conclusion irrespective of its truth.

Regards, Graham
 

marty

i understand your position that prosecuting government operatives who rely upon corrupt or egregiously incorrect advice from olc attorneys is not the answer. you glossed over a question that was running through my head, however, while reading this post.

yes, it is a difficult and thorny question to punish the olc attorneys for corrupt and/or egregiously incorrect advice; however, it is not impossible. we clearly cannot rely upon administration officials, i.e. the attorney general or one of his subordinates, to institute proper investigation and prosecution of such conduct -- at least not this administration. there is another body, however, that can take such action and is clearly not shackled by administration hamhandedness.

maybe i am being naive, or i simply don't know the answer to this, but if it turns out that the advise given by olc attorneys is corrupt and/or egregiously incorrect to the point where any 1L student, or anyone with a shred of intelligence and decency for that matter, would recognize the illegitimacy of the position taken by the attorneys who published the position, and it further turns out that the olc attorneys published the position simply to provide cover for the administration, knowing of the dubious, at best, conclusions they were giving, why can't the state bar to which the olc attorneys are members commence disbarrment proceedings? i would appreciate some thoughts on this question from all.
 

I agree completely with the thrust of this post (ie, that it would not only be counterproductive from the point of view of DOJ policy, but legally futile, to prosecute the CIA interrogators), but I am confused by what seems to be an internal inconsistency in your reasoning. At times you seem to suggest that the CIA interrogators would have a legal defense based on reasonable reliance on OLC advice, and at other times you seem to suggest merely that DOJ will never actually prosecute them under these circumstances. With respect to the first point, the critical issue (according to your post) is whether the conduct was “patently illegal.” You express the opinion that it was, but you don’t explain what considerations a court would look to in making that determination. If breaking into Ellsburg’s office didn’t qualify as patently illegal, it is hard to see how waterboarding would.

Having said this, I applaud you for trying to analyze this issue as a lawyer or court actually would. I suspect that it will not endear you to your audience at Balkinization.
 

Thank you for the outstanding exposition on reliance upon government officials. It was very instructive.

I also agree completely that the proper remedy here, if one assumes that the CIA coercive interrogation program clearly violates the Torture Statute, is to begin impeachment proceedings against the President. Nothing less would suffice.

Indeed, if Congress can seek to impeach Presidents for second rate burglaries and perjury about fellatio in the Oval Office, then Congress should have no compunction about impeaching a President who is clearly torturing prisoners. This is a no brainer.

Does anyone here doubt that Congress would impeach the President if he ordered the CIA to treat al Qeada prisoners the way the North Vietnamese treated John McCain by beating him, dislocating his shoulders and starving him? I have no doubt at all. Indeed, I would be blogging furiously for Mr. Bush's impeachment under those circumstances.

Consequently, the fact that impeachment is only being discussed in the back benches Congress by a minority of the opposing party, and then primarily for reasons of partisan revenge for the Clinton impeachment, begs the question of whether Congress (or the voters they answer to) actually believe that waterboarding and the rest of the CIA coercive interrogation techniques are truly illegal.

Sometimes, even when it appears a suspect has violated the law, a prosecutor uses her discretion to decline to prosecute because the prosecutor feels criminal prosecution would not be just or that a jury would not think that it was just and would acquit. Prosecutors use this discretion all the time in cases where the suspect very likely violated the law defending herself or someone else from some human predator. Perhaps Congress is using that same discretion because they do not think that it would be just to prosecute the President for violating the law to protect the country or that they suspect the jury/voters feel this way.

The bottom line is that the fact that neither elected branch feels that this is worth prosecuting indicates that the question of whether waterboarding is legally or morally wrong is not at all clear to many people of good faith in both parties and in the citizenry.
 

I am puzzled. If the CIA torturers can be said to have relied upon OLC advice, then how is the President's reliance any different?

Perhaps more importantly, the precedent is terrible. Future presidents can, literally, do whatever they want without fear of criminal sanction, provided that some hack lawyer in OLC can write a miserably-reasoned "opinion"?

I would suggest the following: an OLC opinion can be relied upon only if it is made public.
 

The real issue is not whether to prosecute the interrogators. The real issue is whether the next administration will prosecute the OLC lawyers and George W. Bush. They are war criminals. That really is beyond dispute. They should go to jail as a matter of justice.
 

(The only hypothetical exception to this would be in the almost unthinkable scenario in which the OLC lawyers and CIA operatives all knew that the advice was bogus and were simply conspiring to engage in conduct that they all believed to be unlawful.)

Seems to me like this is a pretty good description of what actually happened.
 

Seems to me like this is a pretty good description of what actually happened.

At the very least, seems like a plausible enough scenario that one might wish to INVESTIGATE to learn whether that's what they actually thought.
 

What Mukasey said takes things to a new level. Now that we know the CIA did use waterboarding to torture some Al Queda leaders he announced that although this might have been illegal, the Justice Department could not possibly prosecute it, because the Justice Department had authorized it. The Attorney General has now personally claimed the right Richard Nixon claimed, to authorize any illegal act. Criminal conspiracies are now legal provided that the Attorney General is participating in them.

The Watergate break-in was apparently authorized by the then-Attorney General, John Mitchell But not even Mitchell had the cojones to argue that he had thereby legalized the break-in, which is what Mukasey is doing. An Attorney General who claims the right to exempt officers of the federal government from the enforcement of the law should, in my not very humble opinion, be impeached at once.
 

"Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

"Article 8. 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."

Charter of the International Military Tribunal (London 1945), 59 Stat. 1544,
82 U.N.T.S. 279, available online HERE.


See also 18 USC § 371 (Conspiracy to commit offense or to defraud United States):

"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

"If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor."
 

prosecution unthinkable according to Mukasey? Here are some observations:

- Forget for a while the low level stuff and consider the big picture. The big picture is this. Governments want/need to torture, governments will find a way to torture, it's that simple. To expect that they will come back and start prosecuting themselves when things gets publicly exposed is ridiculous. Things almost never worked that way in human history. Think Syria, Egypt, 3rd Reich, Stalin Russia, for example. They all had their OLCs, which all produced internal Yoo like memoranda they used to block prosecution of whatever crimes they were involved in. So in a sense Mukasey makes sense here. Historically, logically that is, morally sadly not.

- If any people really want to prevent their governments from torturing they need to put the prosecution of alleged torturers and their facilitators in the hands of international institutions. With that arrangement Cheney or any CIA agent or contractor thinking about torturing, any OLC lawyer thinking about writing a legal justification for it, any FBI agent thinking about destroying anyone's life/career, any cop thinking about harassing, framing, beating or killing anyone will think twice because they will not longer be sure that their government and its legal system will shield them from legal responsibility. This will work not only for this country but also for everybody else. Syria for example.

- The II WW produced a new legal concept, orders that can be so illegal they cannot be followed without assuming criminal responsibility (Nuremberg defense). Note that the responsibility for determining whether any particular order is illegal is solely that of the person who is supposed to execute it.

This applies equally well IMO to OLC memoranda, some of them have and will in the future attempt to immunize conduct so plainly criminal that anybody attempting to rely on them will be required to make an independent determination of their legality. In other words CIA torturers had to independently evaluate whether their torturing was legal or not.

Mukasey refusal to evaluate their claim that they reasonably relied on Yoo/OLC memoranda is more than troubling. But it is understandable, any such evaluation could have only one outcome, the reliance wasn't proper.
 

Here's a wrinkle for ya:

WSJ: The CIA's secret interrogation program has made extensive use of outside contractors, whose role likely included the waterboarding of terrorist suspects, according to testimony yesterday from the CIA director and two other people familiar with the program.

PROF. LEDERMAN: Do you think the OLC "get out of jail free" cards should work for private contractors in such circumstances as recounted above? Why or why not?
 

The doctrine on this is a bit complicated, but I think it is fair to say that the four leading Supreme Court cases --- Raley v. Ohio; Cox v. Louisiana; U.S. v. PICCO; and Marks v. United States -- stand for the broad proposition that criminal culpability may not be imposed for conduct undertaken in reasonable reliance upon the representation of government officials that the conduct was lawful.

The cases you cite all involve instances in which NON-governmental parties relied on the advice of government officials. It makes some sense to excuse the private party in such a case, based on what is essentially a theory of estoppel.

It makes no sense at all to me to apply the same rule when the government gives advice to itself. This is particularly true when we consider the unitary executive (even the non-controversial, weak version).

It's clear that the decision to torture these prisoners was made at the highest levels, quite probably by Bush himself. The legal advice of the OLC therefore amounted to little more than Bush giving himself legal advice which he now asserts in defense of a crime. There's no estoppel when a party relies on its OWN representations.

The same remains true even if Bush was not the ultimate decision-maker. There's still only one "party" involved in the transaction, namely the Executive Branch. There can be no estoppel in such a case.

Personally, I think prosecution of the advice-givers is more productive in the long run, and I'd prefer it to the usual practice of only going after the foot soldiers. But one way or the other, prosecution is essential here. We MUST send a message that this behavior will never again be tolerated.

why can't the state bar to which the olc attorneys are members commence disbarrment proceedings?

They should be.
 

The cases you cite all involve instances in which NON-governmental parties relied on the advice of government officials. It makes some sense to excuse the private party in such a case, based on what is essentially a theory of estoppel.

Well, not only does that answer my question about contractors, but it's a big clue as to why contractors were even used in the first place.

Still, someone told the contractors what to do. It's not like CIA said "here's KSM, here's some OLC opinions, y'all take it from here" and wandered off whistling, hands in pockets.
 

Prof. Lederman:

Well, for one thing, it remains DOJ's view that the waterboarding was lawful at the time it used. (Hayden also testified today that its current legality would be a harder question, because of the intervening enactment of the DTA and MCA, and the Hamdan decision. This confirms my earlier surmise that in the Administration's view, waterboarding is not torture under the torture act (a statute that was in place in 2003), and that its legality today thus depends only on whether it is "cruel treatment" under Common Article 3 and on whether it shocks the conscience under the McCain Amendment.)

While the 'legal' reasoning, as usual, is tailored to the best advantage of the client, the real reasoning goes like this:

"We waterboarded five years ago. We do not commit crimes. Ergo, it was not a crime back then."

A much more pragmatic line of reasoning, dontcha think?

Cheers,
 

Prof. Lederman:

The only hypothetical exception to this would be in the almost unthinkable scenario in which the OLC lawyers and CIA operatives all knew that the advice was bogus and were simply conspiring to engage in conduct that they all believed to be unlawful.

I think the actual case to be different: I think they didn't care if it was unlawful; they thought they "had to" do it. This sentiment crops up in the rest of the 'defence' being put out by the maladministration.

Once they decided they "had to" do it, of course, they put lawyers to work trying to find some way to cover their a$$es (and to deflect the apparent reticence of some as to what was being done).

Cheers,
 

Does anyone here doubt that Congress would impeach the President if he ordered the CIA to treat al Qeada prisoners the way the North Vietnamese treated John McCain by beating him, dislocating his shoulders and starving him?

Well, let's see:

Relying on reporting previously conducted by Carlotta Gall and Tim Golden of the New York Times - and through his interviews with military intelligence at Bagram - Gibney retraces how Diliwar suffered brutal physical treatment that was part of a de facto Army policy of torture: He was deprived of sleep for days, suspended from the ceiling by his wrists and beaten to the point where his legs were "pulpified," according to the Army coroner. The death of the taxi driver, who had no known connection to al Qaeda or the Taliban and was never charged with a crime, was even documented by the U.S. prison coroner as homicide.

Diliwar is the means by which Gibney traces a line of accountability from the abuses that took place at Bagram to Guantanamo Bay and Abu Ghraib. As those who followed the controversy surrounding the Abu Ghraib photos will remember, the principals of the Bush administration claimed that a few "bad apples" were responsible for the horrific acts that happened there. But Gibney argues, in overwhelming detail, that the waterboarding, sleep deprivation, sexual humiliation, shackling, hooding and other Spanish Inquisition-era practices that Alberto Gonzales rationalized as "coercive interrogation techniques" were sanctioned by Dick Cheney, Donald Rumsfeld and probably George Bush himself.

If it weren't bad enough to be reminded that this crew of government officials found the Geneva Conventions "quaint" and "vague," Gibney presents rounds of interviews with conservative Republicans and intelligence officers who conclude that not only did the United States commit war crimes in Guantanamo and Abu Ghraib, it did so without gleaning much intelligence. The film notes that of the hundreds of prisoners detained since September 2006 by U.S. forces in Afghanistan and Iraq, only 1 percent have been convicted. Meanwhile, of the more than 100 deaths in U.S. custody, 37 have been officially declared homicides by the U.S. military.

Cheers,
 

arne:

I can always rely upon you to make the obvious and irrelevant knee jerk reaction to my posts. The President did not order the alleged abuse to which you linked.
 

The only hypothetical exception to this would be in the almost unthinkable scenario in which the OLC lawyers and CIA operatives all knew that the advice was bogus and were simply conspiring to engage in conduct that they all believed to be unlawful)

The thing is that this apparently is not sarcastic, but many of the people quoted (or those who agree with them) most assuringly probably think it should be.

The core principle of this post seems to be that the gov't here reasonably decided that, e.g., waterboarding isn't torture, that said arguments were not "bogus," and there was no "conspiring" to avoid the question.

It seems a truism to suggest that the DOJ shouldn't prosecute if they think it's legal at the time! Obviously. The better question is if a new leadership comes in and decides it was not and that it was blatantly not. And, investigations etc. are warranted to address the point.

If "well they said it was okay" is the end of it, well "just following orders" is the rule of the day. Charles G.'s quotes suggests this is bogus. And, ML here reeks a bit of OLC bias.
 

Something can be "reasonable" and still wrong. The core issue here repeatedly seems to many that the behavior was patently unreasonable.

The gist of the post, esp. the quote I supplied, implies it simply is not. I might be missing something, but this seems off.
 

I think there's an interesting conflict between the well-presented argument here and the specific text quoted by Charles Gittings (Article 8). The suggestion in the international law is that the limitations of estoppel are present here as well... that that doctrine is insufficient to wholly insulate the criminals from war crimes as defined here.

Which would make sense, of course. War crimes, as defined in those articles, are presumptively obvious, and legal opinions shielding it are presumptively corrupt under the same Nuremburg logic. This seems a fairly sensible extrapolation of the same principles which suggest that even if a war crime is not actionable under a dictatorship's laws, international law requires that it be actionable by other signatories if not acted upon locally.

One can debate the validity of that principle, but it definitely comes into conflict with the use of OFC opinions as a foolproof shield.

Excellent argument, though.
 

Bart DePalma:

"Arne

"I can always rely upon you to make the obvious and irrelevant knee jerk reactions to my posts. The president did not order the alleged abuse to which you linked".

as you know, i have been on commenting hiatus for quite a while now, but since i already posted on this thread, what the heck...

not that mr. langsetmo would appear to need my assistance, but i would ask the following questions to mr. depalma, having read the link referred to by mr. langsetmo. keep in mind, i have only read the link. i have not seen gibney's movie.

1. i assume, mr. depalma, that you do not have clearance to obtain classified information; therefore, other than a hunch or your political beliefs, what proof do you have that the president did not order the alleged abuse? in the absence of proof, what is the basis for your statement, other than, as noted above, you just don't believe the president of this country would ever order abuse?

2. have you seen gibney's movie? i personally have not. as noted above, i read the link, and seeing as i am somewhat literate, i can surely see that there are ALLEGATIONS against the president within the link. without being privy to the innermost classified circle of the government myself, while i have personal suspicions, i have no conclusion one way or the other if the allegations are true, and fail to see how you can so confidently state that they are not -- unless you do have high level security clearance the rest of us are not aware of.
 

["Bart"]: I can always rely upon you to make the obvious and irrelevant knee jerk reaction to my posts. The President did not order the alleged abuse to which you linked....

"... I know this for a fact, because he talked to me and assured me this was true."

Just a "few bad apples".

Cheers,
 

harlequin:

The suggestion in the international law is that the limitations of estoppel are present here as well.

Estoppel is a civil law canstruct.

Cheers,
 

harlequin:

One can debate the validity of that principle, but it definitely comes into conflict with the use of OFC opinions as a foolproof shield.

"OFC". "Office of Fraudulent Counsel", perchance?

Cheers,
 

Professor Lederman,
I am deeply disappointed by this post. At a time when the CIA admits that it tortured (yes, tortured) under orders from above (yes, orders), you call for institutional preservation rather than institutional reform. I think your experience with the OLC, and your very informed view of its workings (and, perhaps, your perception of the OLC’s importance) have possibly inhibited you from conceiving of a world with a radically different OLC role, or at least one in which government agents are not free to dabble in the gray zone of cruelty without the worry of prosecution. Persons who wish to interrogate "harshly" should incur some risk for that. Period. Have you ever contemplated a world in which the OLC would be instructed NOT to issue opinions that pre-approve “coercive” techniques of any sort---a world in which it would even be deemed unethical for an OLC lawyer to provide interrogators with anything more than a Miranda-style prophylactic guideline saying that anything one does beyond the bounds of normal police interrogations is not necessarily illegal but is something one does at one's peril in terms of criminal liability (i.e. “I as a lawyer cannot and should not vouch for you”)---a world in which, an OLC lawyer has the ethical obligation NOT to help the would-be torturer toe the line? I presented such a proposal to Jack Goldsmith in a class at Harvard Law School. He seemed to think a rule preventing the OLC from pre-approving any techniques beyond the bounds of ordinary police interrogation would have halted or even prevented the CIA program altogether. He thought the proposal radical at first, for, as he put it, “everything the CIA does is illegal.” From where might one draw precedent for such a principle that seems, at first glance, radical? Medical ethics. Ever since WWII, doctors have been trying to cope with their role in facilitating atrocity. Lawyers have not (despite the Justice Case at Nuremberg). Doctors have come up with broad prohibitions relating to torture. Doctors may not heal a person for the purpose of returning them fit for the torture chamber. Doctors may not be present at any interrogations, even if they would supposedly be there to prevent things from going too far. It was understood by doctors that they, like everyone, run the risk of getting co-opted (see Milgram), and that professionals are needed to make atrocity run.
Lawyers have been cogs in the war crime wheels here. Legal advice about the gray zone of "what is torture/CID/war crime/violation of common article 3" should not be given prior to an interrogation, especially not if the consequence of giving that advice is the bestowing of immunity from prosecution. A different rule: if a method is not obviously within the bounds of what an interrogation should look like within a proper police station, its legality cannot and should not be vouched for. This would be the equivalent of the world medical prohibition against doctors being in the interrogation room at all. Neither the lawyer, nor his memo, should be in that interrogation room giving the thumbs up to waterboarding (or forced nudity; or stress positions; or four hours of standing; or rape via forced non-medical enema, which perhaps the OLC determines is not rape because it is not vaginal and is done with an inanimate object; etc).
Now, I think I know what you are going to say: 1) you are only defending the waterboarders themselves, not the lawyers, 2) you are pro-OLC reform, and 3) none of this talk of ethics gets one past the complicated legal road towards prosecution.
The ethics discussion is meant to encourage you to consider a bigger change in OLC functioning than you appear to in this post and elsewhere. If all you can say after the US has become a remorseless advocate of its past atrocity (Cheney’s recent “damn right” philosophy), has embraced torture with open arms for all the world to see is: “we should want CIA officers to be able to rely on OLC advice,” then I am deeply discouraged by the apparent lack of vision on your part, a person who has, in so many ways, been a leader in the struggle against the US torture program. CIA agents’ ability to rely on OLC advice has been precisely the problem. It has been instrumental to making the torture run. Without it, there probably would not have been a secret prisons programs. Why do I say that? Because as soon as Hamdan came down, the CIA torturers refused to go to work, and Bush had to transfer his fourteen to Guantánamo. The CIA agents were afraid of criminal prosecution due to Hamdan. It took the MCA and the subsequent Executive Order (and whatever secret CIA directive exists pursuant to that order) to get the torturers back on the job. Fear of prosecution matters. Without OLC lawyers giving out get-out-of-jail-free cards, there would likely not have been torture.
But you maintain, “prosecuting the intelligence operatives who relied on OLC's bad advice is not the answer.” I submit that not doing so keeps the legal mechanism that designed and enabled the torture program intact. Next time a tragedy happens, off will go the lawyers to write the opinions to provide cover for the brutal retaliation, a union between atrocity authors and atrocity perpetrators. So long as the lawyers keep the opinions vague and within the realm of some modicum of plausibility, they are probably protected. The would-be implementers of atrocity would feel similarly at ease, for if they didn’t come under scrutiny after the outlandish OLC-approved CIA torture program came to light, they certainly would be free to rely on whatever dodgy OLC opinion came their way in the future. The message would be a powerful pro-torture one. What Professor Lifton calls an, “atrocity producing situation.” Prosecuting the waterboarders now would instead rupture the mechanism linking lawyer and torturer. If, instead, the waterboarders go free, we will have validated the Nuremberg defense. I know you think otherwise, but tell me again, in this situation in particular, the difference between “I was following orders,” and “I was reasonably relying upon the assurance of government officials that my conduct was lawful.” To me it seems a mere formal distinction. Do you think it reasonable for a person to accept an assurance that drowning some one for the purposes of simulating their execution is legal? Didn’t the public outrage start at the Mukasey hearings exactly because waterboarding is so obviously torture? Haven’t enough torture survivors from TASSC said waterboarding is torture? Doesn’t the institutional memory of the CIA extend to include the screams of the tortured of the Latin American CIA trained and sponsored dictatorships, who pleaded with their captors to stop drowning them years and years ago? Wasn’t waterboarding done at the SERE school as part of a resistance to torture course? Weren’t the SERE instructors the ones who “reverse engineered” that torture for use by CIA waterboarders precisely because it was torture? Wasn’t everyone perfectly aware that they were torturing, committing crimes, breaking the law? You still might argue that the agent who drowned a human being to the point of near death might have not have known he was acting criminally. To that I say, charge him under a lower mens rea if you absolutely must believe that fantasy. I do not believe it. This is a criminal conspiracy from top down. Smoking gun? The Aug. 2002 Torture Memo, for one. Another smoking gun? Three people were drowned to the point of near death so that they might be coerced into answering some questions. Res ipsa loquitor.
At Nuremberg, besides the “following orders” defense, the defendants also pointed out that certain charges they faced were for crimes that were seemingly non-existent before WWII, namely crimes against humanity and genocide. The response: no one should have/could have believed that the atrocities of WWII were not criminal. No one should have/could have believed waterboarding to be legal.
And let’s not forget international human rights law. Here’s another opportunity to take a step back from a US-centric, OLC focused analysis. There is an unassailable obligation to prosecute or extradite torturers found on one’s territory. As you know, no amount of complexity in domestic law is allowed, under international law, to serve as a justification for a state not meeting an international obligation. There is no way to reconcile your proposal to not prosecute the waterboarders with the US’s obligations under the UN Convention against Torture. I assume you are not in favor of advocating for a violation of that treaty. Until we take international human rights law seriously (rather than not even mentioning it in a post like yours), we are doomed to repeat the atrocity cycle (CIA torture is not new, after all; only the public embrace of it is).
In the end, I agree that the bigger fish carry the biggest responsibility, and, we should focus on pushing for their accountability ultimately. But no one in this chain of torture command is excused, lest we want to repeat the tragedy all over again. And as with anything in this administration, the place they are most likely to open an initial investigation, if ever, is at the bottom rung (see Abu Ghraib). If you want to look up the chain of command, you probably have to start down below.
One last point: you say the DOJ still believes that waterboarding was lawful at the time it was used. How? At the time it was used, the torture statute was in place and the war Crimes Act still covered all violations of Geneva. Now, I know that you have pointed out that the DOJ seems to have secretly ruled that waterboarding is not per se torture, which itself is an erroneous DOJ opinion. Still, what about the War Crimes Act? The DOJ should accept that at least Common Article 3 applies to the detainees in question (they may be covered by more than just that under Geneva, but let’s leave that aside). The fact that the Supreme Court determined Common Article 3’s application only in 2006 shouldn’t negate the fact that the correct view of the law was that Common Article 3 covered the detainees throughout the length of the conflict. Thus, for the DOJ to still believe that the waterboarding was not criminal at the time it was done, they would have to argue that it did not violate any of the Geneva provisions (not even the prohibition on “outrages upon personal dignity” contained in Common Article 3 but impermissibly left out of the MCA), which seems indefensible. The administration knew it could not support this view for waterboarding or any number of other techniques it had authorized and used, which is why they rushed to get the MCA passed. The only argument I could see them making for the assertion that waterboarding was legal when it was done would be one drawn from Mukasey’s testimony on Common Article 3, namely that Hamdan only applied Common Article 3 to detainees for the purposes of procedural protections. This argument is terrible and would go against their prior positions, but I would not put it past Steven Bradbury and friends to make it. Should such a memo exist making an argument that the portions of Common Article 3 that could limit interrogations do not apply to CIA detainees even post-Hamdan, and CIA agents rely upon such a memo to disappear individuals into secret prisons by drugging them, anally raping them with enemas and/or suppositories, putting them in only diapers, and shipping them to a “Dark Prison” where they are subjected to sensory deprivation and hypothermia and possibly head slapped while locked into a stress position...do you think either the lawyers or the CIA agents should not be prosecuted for that conduct? All of these techniques have been used by US agents. What do you honestly think would affect the integrity of the OLC or the DOJ more: their prosecution, or their non-prosecution? What would be better for the rule of law, democracy, and human rights?
 

phg said...

Bart DePalma: "Arne, I can always rely upon you to make the obvious and irrelevant knee jerk reactions to my posts. The president did not order the alleged abuse to which you linked".

1. i assume, mr. depalma, that you do not have clearance to obtain classified information; therefore, other than a hunch or your political beliefs, what proof do you have that the president did not order the alleged abuse?

Once again, it is not up to me to prove the negative.

This is arne's star chamber. If he or you want to play a prosecuting attorney in the blogosphere, you have to present evidence to back up your charges.

There is no evidence whatsoever that Mr. Bush ordered the abuses to which arne referred.

Making accusations without evidence is slander, not proving a criminal case.
 

Note that the language "commit any offense against the United States, or to defraud the United States [...] in any manner or for any purpose" includes writing fraudulent or mistaken briefs for OLC.

Note also that what is or isn't torture p. 18 USC 2340a doesn't affect what is or isn't assault p. 18 USC 113, and that waterboarding and the other torture methods employed by the CIA program are federal crimes under BOTH statutes.
 

FWIW, I've got this post up on my blog WRT prosecution: If one accepts the "advice of counsel" defence (which I think is bogus; see here, et seq.), then let's just follow the responsibility up the chain of command. If the OLC has "authorized" illegal behaviour, then aren't they criminally culpable as well?

Once again, I invite the "Bartesque" discourse (which this surely will devolve into) to hie itself yon to my blog, where the proprietor won't get too annoyed at the repetitive spanking of you-know-who....

I, for one, will post my own further comments there.

Cheers,
 

Let's take the argument to its logical extreme. What would the Nuremberg court have done had Rudolf Hoess presented a signed legal opinion from the Ministry of Justice, affirming that the activities Hoess supervised at Auschwitz were within the legal scope of the Fuehrer's authority?

The point here is not to equate anything we've done with the Nazis' crimes. I just want to know whether the principle of the "get out of jail free" card has any limits.

Once we know whether there are any such limits, we can try to figure them out.

Because it seems to me that torture -- inflicting torment on someone for the purpose of Making Him Talk -- is self-evidently wrong, and that any legal opinion to the contrary could not reasonably be relied upon. That would've been my answer to Hoess as well.

I hope that Prof. Lederman will address the question of limits in a future post.
 

Prof. Lederman has 4 cases that might be stretched to support his "reasonable reliance" defense.

I have thousands of Bivens and Section 1983 cases that hold that as long as the law that was violated was clearly established, the fact that the officer subjectively and in good faith believed that he or she was not violating the law is no defense to liability.

So who's right on the law? I am.

But to go a step beyond, I think this gets to Prof. Lederman's weak spot. He wants the olc to mean something. Not simply in the sense of being an advisor to the executive branch, but in the sense that its opinions have some preclusive effect or state the law or can be relied on as precedent.

And they don't. Nor do we want that. The olc is not filled with Supreme Court justices. The olc is run by a political appointee. Its opinions are only as good as the people who run it (which is not good at all in this instance).

So I am in favor of throwing the book at everyone who waterboarded, both on legal and policy grounds.
 

IMNAL, so i am way out of my league here, but....

i'm struck with the resignation of mr. lederman's position. oh well, hm; that's certainly logical! we'll lose out to the smart criminals posing as lawyers and government officials, all under oath to uphold the constitution!

hell, even spock would be shocked by that one.

my humble perspective is this:
that argument - that this OLC advice is reasonable and those submitting it were acting in good faith - only holds up if there is no reason to believe otherwise.

i'll not list all the many reasons to believe otherwise, but....

if the ostensible need to use torture techniques is to obtain information that would save many US lives under imminent danger (tho we all know the REAL reason is to impose terror and submission and thus complete control), then...

how can these folks explain the remarkably gymnastic contortions of the law submitted in order to justify this action that has to happen in the instant of impending danger? that took some time and planning, with intent, as did the decision to use outside contractors, whose roles interestingly seem to find no arena for accountability anywhere.

the whole thing just stretches credulity beyond anything resembling reason.

i agree with the import of anderson's analogy with hoess; lederman's argument suggests no real limit to the ways in which an individual in a governmental role can usurp THE LAW, precisely because he's in that role.

i sort of recall that this is the FUNDAMENTAL AND UNDERLYING RAISON D'ETRE OF OUR CONSTITUTION, to avoid just this sort of interpretation!

so congratulations to mr. lederman for predicting what the legal defense of this indefensible position will be, along with the rebuttals, but what is gained from accepting that as oh well, back to the drawing board, we'll have to hope we can find a better argument somewhere??

the response that it is not 'practical' to assume that each and every official, down to rank and file, in such a situation cannot be prosecuted is - IMHO - extremely dangerous. actually, it's not just my humble opinion, as nuremberg was pretty much predicated on just that sentiment.

the alternative is essentially to give in to ledermen's notion that none of us as individuals can be held accountable for our actions if we follow orders, even when they are patently criminal and illegal.

not only did the CIA officials know the laws these orders were defying, so did everyone else. hence the contortions. and hence the contractors, who no doubt were the only ones who had no clue of all those laws. most convenient.

this just completely stinks to high heaven. that mr. lederman entertains a "reasonable" 'out' for these monsters leaves me in fear he has completely missed the meaning of the law, and certainly its spirit.
 

anderson said...

I hope that Prof. Lederman will address the question of limits in a future post.

It will be interesting to see if you critics on the left have any more luck in getting Marty to respond to critiques than I have had from the right.

In any case, while Marty's cited case law is not completely on point factually, it is persuasive.

Raley v. Ohio is based on a theory that the Ohio legislature cannot entrap witnessess by first telling them that they may exercise a right to silence in testimony at a hearing and then prosecuting them when they exercise that privilege in reliance on the legislature's own erroneous representation.

As has been pointed out in a previous post, the defendants in that case were not members of the government. In the waterboarding case, DOJ and CIA are part of the same government.

However, the point of the Raley decision is not the proximity of the prosecutor and the defendant, but rather the fact that a prosecuting entity is in an adversarial position with anyone it can potentially prosecute, which could theoretically include any individual within the prosecuting entity. Prosecutors simply cannot entrap defendants.

Of course, this defense has its limits. You could theoretically demonstrate that DOJ and CIA were not in fact adversarial parties, but rather colluded for the express purpose of providing a legal entrapment defense for unlawful activity.

Good luck getting DOJ to prove and argue that.

It has also been erroneously suggested that Marty is offering some sort of Nuremberg defense that the legal advice a government gives itself is an absolute defense to prosecution for war crimes by some conquering power. There are two problems with that argument.

First, Marty's cases offer an entrapment defense, not a blanket reliance on legal advice defense. If DOJ gives CIA legal advice, CIA acts in reliance upon that legal advice and then an entity apart from DOJ seeks to prosecute the CIA, there is no entrapment and Marty's cases do not apply. Rather, CIA is reduced to a simple reliance on legal counsel defense.

Second, the implication of a Nuremberg defense assumes that there is a Nuremberg style international court with jurisdiction over this matter, which is absurd.

Our Constitution provides Americans with the right to trial by an Article III court for civilian offenses and per Quirin at least a military tribunal for war crimes. The Constitution does not recognize international courts.

In order to impose a Nuremberg on the United States, someone has to conquer us. Not very likely in the foreseeable future. It takes good old fashioned hard military power to impose Nurembergs, not the soft power of bureaucracies impotently issuing warrants in Brussels.

In fact, anyone who cites to international law and international courts in these discussions is only demonstrating a lack of seriousness. Until there is a world government with proper jurisdiction, "international law" really means "might makes right." It is the justice of military conquest. Given that no one has the military wherewithal to conquer the United States, the only law which applies to these discussions is US law and the treaties which US law decides to enforce.

In the United States, I do not see another entity besides DOJ which could prosecute CIA for violations of federal law. Consequently, Marty's entrapment defense remains valid for the CIA.

As I suggested from the outset, the proper remedy under the Constitution for this complaint is impeachment of the President, which is also not very likely for the reasons I gave above.
 

Marty protests too much. Folks, this is really quite simple. All you need is 1) persons of interst 2) evidence 3) a grand jury 4) an indictment 5) a prosecution under any of many federal criminal laws 6) a judge and jury and (7) conviction.

I would love to see the defense raise the reasonable reliance type defense in open court. They would be laughed out of there.

Marty also is overlooking the machinations with regard to Dan Levin's memos that he recognized were such egregious manipulations of the opinion writing process by Alberto Gonzalez et al that all that he could think of is conspiracy.

One also only needs to go through the meetings of the War Council (Addington, Yoo, Goldsmith, Gonzalez, Bradbury, Bellinger and others) where they would work what the position should be and then write the necessary opinions. Goldsmith describes that part of the conspiracy pretty clearly in the Terrorist Presidency.

The people below could be found guilty and the people concocting the OLC opinions can be prosecuted.

The weakness here is in having the inability to imagine that we can do this. Of course these prosecutions can be done. The effort this week has been to make us all think that this is not possible. It is an act of power by Mukasey et al to which we are asked to acquiesce.

Of course we should resist this effort - one more in a long series we have had to put up with over torture over these past seven years - and just INSIST that Mukasey prosecute. He can change his mind and he is the Attorney General of the United States which is more than being a mafia shill.

So I would encourage us to turn our energies away from being spun out in analyses that are quicksand to make us sit and think there is nothing for us to do, and to return to our elected officials and Mukasey and tell these assholes (legal term) to do their jobs even if they are so hung up on the fragile institution that is Justice credibility.

I can not believe the extent people will go to rationalize no prosecution. I have a piece over at Jurist and also have an article called Refluat Stercus on my faculty website that is coming out soon.

There are many countries in the world who managed in their domestic courts to get to this kind of high-level lawlessness. I describe it. Yes, it is hard. But, no one said it was going to be easy.

Best,
Ben
 

"When the President does it, that means it is not illegal" Nixon

I am not a lawyer, so please excuse the naive question. I do understand the logic of your argument. However, I find it incompatable with any notion of the rule of law.

Human rights violations and war crimes are routinely committed by government officials around the world under the color of legality. That they tend to be prosecuted only when the violator looses a war, such as in Nuremburg, always struck me as a practical matter. Eichman wasn't going to get hauled in by the Nazis for following orders. You would seem to be elevating that into a guiding legal principle.

Is it possible for members of the Executive Branch to be held accountable for committing patently illegal acts? Is the President bound by law, or does he rule by divine right? Your argument is internally cohesive, but the conclusion is fundamentally incompatable with a democratic system.
 

It bears repeating: where reliance on advice can be a defense such reliance must still be both reasonable and in good-faith. Further, such reliance cannot actually be in good faith where it is unreasonable, as in relying on advice saying an infamous torture technique isn't "really" torture. Remember, there is a big difference between reasonable good faith reliance contrasted with willful blindness, and courts generally have no problem telling the one from the other.

The sense of defeatism probably doesn't come from anything relating to the arguments per se, but from the fact that our nation has sunk to the point where anyone, much less high elected and appointed officials, can proffer such and have them granted any measure of credence, much less potentially carry the day.

We live in dark and shameful times. What are we going to do about it? Breast-beating in these comments is only good to the extent that it helps forge action. You have to give time, money, voice to the fight against tyranny and evil here at home. Maybe after we remove the plank from our eye we'll be fit to help others with their splinters.
 

The only problem I see in Mark's argument comes from Mukasey's use of the word "authorize."

If the OLC only offers binding opinions on what is or isn't legal, then it doesn't really "authorize" activities, does it?

Doesn't the word "authorize" imply that the OLC opinion made it legal, instead?

Or am I reading too much into one word?
 

It seems to me that demands that the Justice Department “investigate” the waterboarding are disingenuous. Since the administration now concedes that waterboarding occurred (which it has more or less tacitly admitted long ago), Congress and the public now have all of the relevant facts, at least if you believe that waterboarding is illegal under all circumstances. Even if you believe that there are unknown facts which might be relevant (eg, exactly how the waterboarding was carried out, what information was sought or obtained through the interrogation), the Justice Department almost certainly already has those facts.

As ML points out, there is no way that the current Justice Department is going to prosecute the waterboarders, given the fact that it has previously advised that the conduct was lawful. BTW, if it did undertake such a prosecution, I suspect that the leftist blogosphere would be up in arms on the grounds that (a) the prosecution has a conflict of interest and (b) prosecuting the waterboarders distracts attention from the administration officials who directed, authorized or condoned the waterboarding.

There are two plausible alternatives for pursuing this from a legal perspective (an international tribunal, I suspect, is not plausible as BDP points out). First, the next administration could initiate prosecutions of the waterboarders (or others). Such prosecutions would be problematic, legally and as a policy matter, for the reasons given by ML. (Anonymous Liberal also has made some of the same points on his blog). If you nonetheless favor this alternative, then you should be urging the presidential candidates (particularly Clinton and Obama) to promise that they will prosecute anyone involved in waterboarding.

The remaining alternative is impeachment. I agree with BDP that this remedy is the one most suited to the grievances you are expressing. Impeachment is not limited to the purely legal questions of whether waterboarding violated a particular statute, whether the law was clear at the time of the violation, or whether there was reasonable reliance on OLC’s advice. It can also consider whether waterboarding is so inherently immoral, contrary to American principles, and inconsistent with international norms that permitting it constituted a political offense of the type discussed in Federalist No. 65. This would seem to be the real issue here (as opposed to whether the term “physical suffering” in the torture statute has a temporal element, which strikes me as a debatable and technical legal question that has little to do with the passions inflamed by this issue).

The downside of impeachment is that not only the impeached are held accountable. The public will also hold accountable those who press the impeachment. So, for example, if it turns out that the waterboarding produced information that may have stopped a catastrophic attack on the US, those who favor impeachment may have to explain why waterboarding was still the wrong thing to do. It is for this reason impeachment is not a popular remedy in Congress. Members of Congress understandably prefer to hold the executive branch accountable in ways that don’t involve any risk to themselves.
 

I notice we haven't mentioned the MCA, whose arcane details have largely escaped my memory.

Does the MCA not eliminate criminal liability?
 

If the OLC only offers binding opinions on what is or isn't legal, then it doesn't really "authorize" activities, does it?

Doesn't the word "authorize" imply that the OLC opinion made it legal, instead?

Or am I reading too much into one word?

I think there are several ways to interpret his use of that word. One is that Mukasey believes the legal opinions immunize the perpetrators. Another is that he wants us to believe that they do. A third is that he wasn't necessarily being technical with his word choice (which was, after all, spoken).

Of course, we need not accept his word as definitive. That remains with the courts.

It seems to me that demands that the Justice Department “investigate” the waterboarding are disingenuous. Since the administration now concedes that waterboarding occurred (which it has more or less tacitly admitted long ago), Congress and the public now have all of the relevant facts, at least if you believe that waterboarding is illegal under all circumstances. Even if you believe that there are unknown facts which might be relevant (eg, exactly how the waterboarding was carried out, what information was sought or obtained through the interrogation), the Justice Department almost certainly already has those facts.

I'm not so sure the DOJ has all the relevant facts. Some people obviously know the legal justifications given, by whom, and who gave the approvals. They very likely do NOT know the identities of the actual perpetrators, what the perps were told, nor the factual circumstances of the torture (was there a ticking time bomb?). Those missing facts would seem to be pretty important for purposes of any prosecution.

The word "disingenuous" applies more properly, I think, to the "if you don't like it, impeach me" school. While the DOJ may know some of the key facts (did Bush himself approve the torture? was there a ticking time bomb?), Congress does not. Thus, the factual basis for impeachment is lacking, except on the weaker grounds of "captain of the ship" liability.
 

just so mr. depalma is not misled by his own notions, perhaps this CNN poll will disabuse him:

www.cnn.com/2007/POLITICS/11/06/waterboard.poll/index.html

seems 69% of polled americans say waterboarding is torture, and 58% say we shouldn't use it.

now the task is to launch the appropriate public education and response: contact conyers to get this rolling in his committee - he's already "on the edge" of going forward on this:
http://impeachforpeace.org/impeach_bush_blog/?p=4762 -
contact keith olbermann to encourage his public push on this count, as well as bill moyers (just to insure that their networks know how much public support there really is) -
and blogblogblog like mad to get everyone out there to do the same, and lots of it.

there's far more momentum for this effort than ever existed for nixon's hearings before they began exposing the extent of his crimes. when the truth starts coming out, the public will be far more up in arms than they were then, given the extent of the crimes here.

the smart way to do it is to go after cheney first, and those papers are already read into the congressional record. this will abate conyers' fears of removing bush and leaving us with cheney.

when the hearings start uncovering the answer to howard baker's infamous question, a bush impeachment will follow.

and actually, commenters over at emptywheel have already suggested that the first impeachment be of bradbury; start with baby steps and see how it goes. conyers is actually eager to do the right thing, but he also wants to do the smart thing.

i say emphasize to conyers that it is our CONSTITUTIONAL DUTY to impeach, and has been all along, and that the canNOT be cowed by the possibility that the media and public will do what they did with the clinton impeachment follies. this is a bird of quite the different feather; the media flogged the fiasco because it so loathed the clintons, but now its silence on bush suggests it is waiting for the public to weigh in.

also, the media loves its bloodfest, which should actually work in favor of impeachment at this point.

finally, the backfire conyers so fears was actually the public's smart recognition that the whole clinton impeachment was a manufactured tempest in a teapot, and wanted nothing of it. this is absolutely NOT what is occuring these days.

the public has got pretty smart about bush and his henchmen, and that public position is so longstanding i don't believe it's going to change for the better for them, not even if they blow iran off the planet. in fact, if they do that, i also believe this public - rather than react in cowering terror as dick and karl expect - will revolt beyond what our founders even dreamed possible of human fury at tyranny and injustice.
 

* MCA § 8(b):

Protection of Personnel.-- Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution that--

(1) relates to the detention and interrogation of aliens described in such section;

(2) is grounded in section 2441(c)(3) of title 18, United States Code; and

(3) relates to actions occurring between September 11, 2001, and December 30, 2005.

http://www.pegc.us/MCA_2006.html


* DTA § 1004:

Protection of United States Government Personnel Engaged in Authorized Interrogations.

(a) Protection of United States Government Personnel--

In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

(b) Counsel- The United States Government may provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation of an officer, employee, member of the Armed Forces, or other agent described in subsection (a), with respect to any civil action or criminal prosecution arising out of practices described in that subsection, under the same conditions, and to the same extent, to which such services and payments are authorized under section 1037 of title 10, United States Code.

http://www.pegc.us/DTA_2005.html
 

Thanks, Charles. Not so sweeping a GOOJF card as I'd vaguely remembered, but certainly an effort to enshrine Eichmann's principal defense as U.S. law.

I wonder whether "agent" extends to cover contractors?
 

ziwfbhDePalma: ... It takes good old fashioned hard military power to impose Nurembergs, not the soft power of bureaucracies impotently issuing warrants in Brussels. .... Until there is a world government with proper jurisdiction, "international law" really means "might makes right." It is the justice of military conquest. Given that no one has the military wherewithal to conquer the United States, the only law which applies to these discussions is US law and the treaties which US law decides to enforce .... .


Man the contempt for the rest of humanity that gives rise to the state of mind evidenced above is shocking. Besides, intimidating other people with your military might will only take you that far, more civilized approach is always more effective in the long run not to mentioned far less expensive. Chances are it will be the militaries that will be effectively "impotent" in this century as any aggressive use of military force will be far too costly politically to contemplate (unless you are Cheney of course).

---

The legal principles developed in Nuremberg are universal and not conditional on the presence of a large occupational force. DePalma is correct however in observing that, as things stand now, it takes external force or a major regime change to implement them.

This situation is highly unacceptable so some try to resuscitate the old concept of "universal jurisdiction" which will likely fail because few nations have stomach for judicial anarchy that would ensue (Bush's DoJ prosecuting Noriega or Putin, theirs Bush).

Apparently however "War crimes, crimes against humanity, genocide and torture may be subjected [to prosecution] by the United Nations Security Council anywhere without the need for universal jurisdiction" according to this article in Wikipedia.

Can some expert comment on this, please?
 

Here is another beauty:

"All states parties to the Convention against Torture and the Inter-American Convention are obliged whenever a person suspected of torture is found in their territory to submit the case to their prosecuting authorities for the purposes of prosecution, or to extradite that person. In addition, it is now widely recognized that states, even those which are not states parties to these treaties, may exercise universal jurisdiction over torture under customary international law."[7]

Link to the source in the Wikipedia article quoted previously.
 

The downside of impeachment is that not only the impeached are held accountable. The public will also hold accountable those who press the impeachment. So, for example, if it turns out that the waterboarding produced information that may have stopped a catastrophic attack on the US, those who favor impeachment may have to explain why waterboarding was still the wrong thing to do. It is for this reason impeachment is not a popular remedy in Congress. Members of Congress understandably prefer to hold the executive branch accountable in ways that don’t involve any risk to themselves.

I would submit that this is actually another upside of impeachment.

This entire matter is a political question which should be debated and resolved in the elected branches.

Contrary to the view of many who post here, this political question is not clear cut and has significant policy pros and cons.

If Congress actually believes that waterboarding KSM & Co. is unlawful, then they are duty bound to bring articles of impeachment and make their case to the American People.

MLS is right to suspect that there is a considerable risk to Congress in doing so because the American People just might not agree with Professor Lederman's view and just might actually agree with the Executive that waterboarding was justified to dismantle al Qaeda and thereby keep the US safe.

Indeed, I am pretty confident the latter result would be the case. So apparently is the Congress, who is not even hinting at impeachment.

Courts are not the place to settle policy questions. That is why we elect Congress and the President.

Either Congress should put up in an impeachment or simply shut up.
 

lll said...

just so mr. depalma is not misled by his own notions, perhaps this CNN poll will disabuse him:

www.cnn.com/2007/POLITICS/11/06/waterboard.poll/index.html

seems 69% of polled americans say waterboarding is torture, and 58% say we shouldn't use it.

I would also wager that the respondents to that poll are parroting what they have been told by the press without context.

Re-phrase the question as follows:

Waterboarding involves placing a cloth over a person's mouth and running water over it for up to a minute or two. Waterboarding causes the person to experience the sensation of drowning without actually drowning

The CIA is reported to have waterboarded Khalid Sheik Muhammad, the alleged planner of 9/11, and two other al Qaeda officers. After the waterborading, the CIA says that these al Qaeda prisoners provided the identities and locations of multiple al Qaeda groups and stopped well over a dozen attacks on the United States.

Should the CIA agents who performed the waterborading be criminally prosecuted and sent to prison?

Should the CIA agents who performed the waterborading be decorated with medals?

One guess on how that poll question would turn out?
 

I re-read the original ML post and as much as agree with everything he says including

... doctrine of reasonable reliance described above is predicated on the notion that there is a serious, important social value in having citizens and government employees be able to rely upon the legal advice of authoritative government officials ...

I'm unable to accept his final conclusion - waterboarders should go free - for this is basically "reductio ad absurdum" situation.

Let's review the situation:

- waterboarding by persons under US jurisdiction has been admitted.

- waterboarding is and has been for several decades considered torture.

- existence of any certification, prior authorization, etc has no bearing on whether any treatment is considered torture or not.

- US is a party to the Convention against Torture which requires it to prosecute persons suspected of torture.

There is nothing to add here - Mukasey has an unequivocal obligation to prosecute here.

---

minor aside - the overriding social value is in having all and any torturing by any government agent fully prosecuted, ability to rely on government advice is secondary. Besides accepting the latter as absolute would mean governments could torture at will.

---

And no DePalma is not right, this is definitely not a political or impeachment issue. Purely criminal matter.
 

Anderson,

That would certainly be my reading of "agent".

Note that the immunity is limited to 18 USC 2441(c)(3) as it existed prior to amendment by the MCA; then 2441(c)(3) referred to "any violation" of Geneva Common Article 3 ("CA3"), where now it refers to "grave breaches" of CA3 as defined by the MCA, including the hoo-ha IRT "shocks the conscience". This "clarification" was in response to Hamdan, but the administration misreads the opinion to mean CA3 applies when what it actually says is that CA3 is the minimum that might apply without resolving the question of whether CA3 or the full Geneva conventions apply.

And oops, they modified the wrong sub-section of 18 USC 2441: 2441(c)(1) applies to grave breaches of Geneva, and 2441(c)(2)
applies to any violation of Hague IV annex art. 23, 25, 27, or 28. The reason for the mistake is that they are clinging to their argument that a gap exists between who Geneva protects as a POW or Civilian which is occupied by "unlawful combatants" as defined by executive fiat.
 

One more important point occurs to me. The issue at hand -- reliance on OLC advice -- is an affirmative defense. It's not an element of the crime which is missing, it's a defense on which an accused would bear the burden of proof. I think I can safely say that not many prosecutors make the decision not to prosecute in such cases, all the more so in the absence of case authority directly on point.
 

MLS:

The downside of impeachment is that not only the impeached are held accountable. The public will also hold accountable those who press the impeachment. So, for example, if it turns out that the waterboarding produced information that may have stopped a catastrophic attack on the US, those who favor impeachment may have to explain why waterboarding was still the wrong thing to do. It is for this reason impeachment is not a popular remedy in Congress. Members of Congress understandably prefer to hold the executive branch accountable in ways that don’t involve any risk to themselves.

I don't think it did (and I think that even if it did, that's kind of irrelevant).

Cheers,
 

Charles Gittings quotes the DTA:

Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

Hmmm. What did that last part mean?

Cheers,
 

garth sullivan said...

BDP's description is a little disengenous to say the least, but what's new. Center for American Progress reminds us, Waterboarding is an interrogation practice in which, "the victim's lungs fill with water until the procedure is stopped or the victim dies."

As Malcolm Nance, a counterterrorism specialist who taught at the Navy's Survival, Evasion, Resistance and Escape (SERE) school in California, told Congress, "Waterboarding is a long-standing form of torture used by history's most brutal governments, including those of Nazi Germany, Imperial Japan, North Korea, Iraq, the Soviet Union and the Khmer Rouge of Cambodia."

Actually, according to Nance, this extreme form of waterboarding is what we do to our own SEALs at SERE school, Japan did to our WWII POWs and the Soviets did to dissidents. It causes real drowning and can kill the subject.

This is NOT what CIA did to KSM & Co. I am basing my description on what John Kiriakou and others at CIA and the SF have described to the press on a number of occasions.

Indeed, former SF have performed the waterboarding I described on Fox News' Steve Harrigan and I believe at least one of the broadcast network reporters.

CAP and Nance should know better or they are simply lying.
 

Please understand that the persons in our government have an interest in trying to minimize what they did in what they say. The fact that the CIA tapes were destroyed are the clearest testimony as to the severity of what was done. Granted KSM did not die, but it is still good old waterboarding and no sugar coating post-hoc is going to change that. The people who are lying are the ones who have been selling us soap on this since 2002 - both in the Administration and Congress (remember by Jane Harman video).
Best,
Ben
 

Arne

I am sure that you think it is irrelevant whether waterboarding stopped a catastrophic attack. But I assume that you don't think that it is irrelevant to most members of Congress. Or more precisely, that most members of Congress want to tell their constituents that they think it is irrelevant.
 

On October 12, 2004 I filed an amicus brief with the US District Court for D.C. in the Guantanamo Bay Detainee Cases coordinated under Judge Green that's relevant...

---

[O]n information and belief, and subject to the penalties for perjury in the U.S Code, amicus hereby solemnly affirms:

(a) That there is probable cause to believe that Respondents are engaged in a conspiracy to commit war crimes pursuant to 18 USC § 2441 (War crimes), 18 U.S.C. § 371 (Conspiracy to commit offense or to defraud United States), GPW, GC, CA3, and HR.

(b) That the petitions in these cases exhibit prima facie evidence of those crimes, including, but not limited to, unlawful detention, inhumane and degrading treatment, extra-judicial punishments, denial of lawful due process, unlawful coercive interrogations, unlawful deportations, and trials before unlawfully constituted tribunals.

(c) That the only purpose of the Respondents and counsel for Respondents in these cases is to deny the Petitioners / Plaintiffs their lawful rights and due process, which constitutes an offense pursuant to 18 USC 2441(c)(2) per HR art. 23(h).

(d) That in addition to the Respondents named herein, Richard Cheney, the Vice President of the United States, and John Ashcroft, the Attorney General of the United States are principals or co-conspirators in these crimes.

(e) That all of the criminal acts alleged were committed under a false color of authority in the PMO by the direct authorization of the President.


The Supreme Court decisions in Hamdi and Rasul repudiated the two major legal premises of the Respondents’ unlawful detainee policies, namely, that the President might properly exercise the powers of a Roman dictator when acting as Commander-in-Chief, and that Guantanamo Bay is a jurisdictional "black hole" beyond the reach of the law. Now respondents are reduced to the extremity of arguing that the laws of the United States are unenforceable in the courts of the United States, and that ad hoc procedures in direct violation of those laws constitute due process of law.

I do not address the Hamdan (Swift) v. Rumsfeld case here, but the Respondent’s pending Cross-Motion to Dismiss (8/6/2004) in that case makes arguments which have a direct bearing here and should be carefully noted:

"The Fourth Circuit [in Hamdi III] alluded to the fact that there was one area in which the contracting parties sought to go beyond diplomacy to enforce violations of the treaty: "grave breaches," which the parties pledged to punish themselves by enacting domestic criminal legislation. See Article 129 (GPW) ("The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in [Article 130]."); Article 130 ("Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against person or property protected by the Convention: * * * wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention."). Congress responded by enacting the War Crimes Act of 1996, 18 U.S.C. § 2441. That Act provides a means for remedying grave breaches, but obviously does not create any privately enforceable rights. The Executive Branch, through its ability to bring prosecutions, remains responsible for ensuring adherence to the treaty. In light of this clear textual framework for enforcing the treaty, there is no sound basis on which to conclude that the treaty provided prisoners of war, let alone unlawful combatants such as Hamdan, with private rights of action." Id. at 31.

That is the last refuge of the Respondents in all of these cases: the gratuitous notion that they are at liberty to commit war crimes with impunity because they are responsible for enforcing the laws, and that no one has any "private right of action" to the contrary. They claim entirely too much. When has it ever been necessary to file a civil action in order to report a crime or call upon the authorities to enforce the law against the perpetrator of a crime? And when has any lawful authority been able to exercise prosecutorial discretion over their own crimes? Prosecutorial discretion exists to serve the interests of justice, not to enable officials to commit crimes with impunity -- and there is no form of immunity for war crimes.

---

The full brief is available HERE.
 

And oops, they modified the wrong sub-section of 18 USC 2441

I'd noticed something like that -- the War Crimes Act essentially adopts the Geneva ban on torture, & they failed to catch that in the MCA/DTA. Of course, then we get the Supreme Court deciding that "torture" in Geneva is too vague, or somesuch b.s.
 

"The legal principles developed in Nuremberg are universal and not conditional on the presence of a large occupational force. DePalma is correct however in observing that, as things stand now, it takes external force or a major regime change to implement them.

This situation is highly unacceptable so some try to resuscitate the old concept of "universal jurisdiction" which will likely fail because few nations have stomach for judicial anarchy that would ensue (Bush's DoJ prosecuting Noriega or Putin, theirs Bush).

Apparently however "War crimes, crimes against humanity, genocide and torture may be subjected [to prosecution] by the United Nations Security Council anywhere without the need for universal jurisdiction" according to this article in Wikipedia."

How about trying to have a little perspective here? Following the attack on Pearl Harbor, the US Government rounded up and detained hundreds of thousands of innocent Japanese Americans in order to protect the nation against the possibility, however remote, that some of them might have been in league with the enemy. Whatever one thinks of this action, it would seem to be an exponentially greater infringement of universal notions of human rights and liberties than was the waterboarding of 3 AQ detainees.

Following the logic of many here, not only should the WWII detentions have been declared illegal and immoral (which is a perfectly reasonable position), but everyone involved, from President Roosevelt to the most junior officials or soldiers carrying out the orders, should have been prosecuted and punished (under US law and/or the “legal principles developed at Nuremburg”). The latter is not a reasonable position. Even worse, it would establish a rough moral equivalence between US actions in attempting to defend our country and the monstrous misdeeds that were punished at Nuremberg.

Ironically, the logic of universal legal principles that can be enforced outside the context of a national legal system quickly leads some, like wg, to wish for some outside force that can impose these principles on rogue nations that fail to respect them. In other words, it leads to the Bush doctrine.
 

The Chicago Tribune offered a sober take on this issue in a lengthy editorial today, which concluded:

On Wednesday, a White House official said that waterboarding is legal and that the president could authorize the use of it. That would "depend on the circumstances," said White House spokesman Tony Fratto, including whether "an attack might be imminent." But a day later, Hayden said the agency banned the use of waterboarding in 2006. "In my own view, the view of my lawyers and the Department of Justice, it is not certain that that technique would be considered to be lawful under current statute," he said.

There is an answer to this. Waterboarding is illegal under U.S. law, and it will not and should not be employed in the normal course of U.S. interrogations of terrorism suspects.

But it is not beyond the realm of possibility that it could come into use in a case of extreme and imminent threat to the nation.

"The president may very well have constitutional authority to take extraordinary actions to protect the integrity and welfare of the U.S. -- end of story," said Northwestern University law professor Ron Allen. "Most likely, that power, like the power to defend against imminent attack, simply can't be curtailed by any other branch of government."

That's not a neat and clean answer, and it's not an answer that suits anyone's purposes in the intense political debate over waterboarding. But it's the right answer.

Congress has declared that the U.S. will not use torture techniques. Congress may go one step further, with legislation that would require all 16 U.S. intelligence agencies to abide by the Army Field Manual's prohibition against waterboarding. That's sound policy and the right message to send to the rest of the world.

But the Constitution is not a suicide pact, as Supreme Court Justice Arthur Goldberg wrote nearly half a century ago. It is possible that a president under the most extreme circumstances would authorize extraordinary steps to protect the nation.

And if what was at stake was the prevention of a terrorist attack on the scale of Sept. 11, the nation would more than understand.

I do not necessarily agree with the Trib's take on the McCain Amendment, whose "shock the conscience test" is so subjective as to be meaningless. However, the Trib does put its finger firmly on the reason why Congress does not proceed with impeaching the President for waterbording KSM or enact a more specific law prohibiting future waterbording of other high level al Qaeda commanders.
 

1) The detentions of Japanese Americans during WW2 WERE "illegal and immoral," and my perspective is uncomplicated:

The Nazis and Soviets used exactly the same excuses to commit exactly the same crimes as the Bush administration has committed, including unlawful detentions, torture, and wars of aggression.

2) King Charles I was executed for committing such crimes, and the founders of this nation believed that there was no method of national suicide more certain than to permit the government to exercise absolute powers outside the law. What the Bush administration has proven here is their incompetence, their moral unfitness for any position of public trust, and the degenerate brutality and dishonesty of their political supporters.
 

MLS, your position amounts to no more than this: because we did something bad in the past, we can no longer punish something bad we did today.

Aside from the fact that your argument allows no room for improvement in moral behavior (and putting aside the phony equivalence between wrongly imprisoning someone -- bad as that is -- and torturing a prisoner), we have done much worse things in the past than lock up Japanese citizens. Try slavery. Does the existence of slavery forever bar us from punishing any lesser wrong?
 

MLS, your position amounts to no more than this: because we did something bad in the past, we can no longer punish something bad we did today.


No, I am just asking for a bit of logic and consistency, as opposed to endless emotional ranting. I think that the detention of Japanese Americans, seeing as it was an executive branch action of questionable legality taken in response to a national security emergency, is rather a better analogy to the issue at hand than is slavery. As for your purported belief that waterboarding of a handful of AQ detainees is a greater evil than the wrongful imprisonment of hundreds of thousands of innocent Americans, I suspect that this is a purely a result-oriented contrivance. I feel 100% confident that if Franklin Roosevelt had waterboarded a few Nazi agents and George W. Bush had imprisoned hundreds of thousands of Muslim Americans, your views would be completely different. Tell me that I'm wrong.
 

Dear Prof. Lederman:

I find your post rather surprising. It seems to amount to nothing more than a repeat of the Nuremberg Defense -- "I was just following orders."

Norway EXECUTED Germans who waterboarded prisoners. The Geneva Conventions, GWB notwithstanding, aren't that hard to understand.
 

I am just asking for a bit of logic and consistency, as opposed to endless emotional ranting.

You're logic is invalid for the reason I noted above. As for consistency, that's absurd. Consistency is utterly irrelevant when it comes to crimes. We don't let bank robberies go unpunished just because John Dillinger got away with a few. The fact that one person gets punished and another does not may be a sign that this world is imperfect, but it's NEVER a defense to crime.

I think that the detention of Japanese Americans, seeing as it was an executive branch action of questionable legality taken in response to a national security emergency, is rather a better analogy to the issue at hand than is slavery.

The logic of your position includes slavery as well. In for a penny, in for a pound.

As for your purported belief that waterboarding of a handful of AQ detainees is a greater evil than the wrongful imprisonment of hundreds of thousands of innocent Americans, I suspect that this is a purely a result-oriented contrivance.

Torture is a categorical evil on the same scale as slavery or genocide. False imprisonment is not. Bush is responsible for horrifying crimes. That's all we need to know.

I feel 100% confident that if Franklin Roosevelt had waterboarded a few Nazi agents and George W. Bush had imprisoned hundreds of thousands of Muslim Americans, your views would be completely different. Tell me that I'm wrong.

My view of Bush then would be the same as my view of FDR now: that he committed a grave wrong, that we should diminish his historical reputation, that we should apologize for it, and that we should compensate the victims.

Oh, yeah -- we've done all that.
 

(sorry for verbosity of this, consider skipping)

MLS is tired, says let bygones be bygones, let us move forward. Which is what I think Mukasey approach is too. FISA violated? He doesn't know. But in any case that has been brought within statue so why don't we just forget the whole thing. National Security Act? Same thing.

All this would be fine by me (functioning government, not a bogged down one is as as much in my interest as MLS's) except that:

Oversight of security agencies (CIA, FBI, NSA, DHS, DoD, local police, etc) as currently functioning is a joke. Nobody can claim that what we have now is sufficient to prevent abuse, current or future. Harman apparently inadvertently exposed that charade for everybody to see. They are basically self-policing themselves now. This is quite serious because they also claim the sole right to interpret laws, secretly so, and to refuse to share those interpretations with Congress even in classified settings.

How can anyone on earth be sure that those people ARE NOT abusing something or someone as we speak is beyond me.

This, plus the fact that Mukasey reserves the right to torture people in the future is the reason for proceeding with the torture issue as aggressively as possible, by the book you may say, international or domestic whichever works best, so they WILL KNOW FOR SURE there will be serious criminal consequences if they embark on violation of any law in the future, to break that too well entrenched sense of their being above the law when it comes to national security. Letting bygones be bygones will only ensure continuing violations.

Civil rights of people here and everywhere else desperately depend on it.

Will that make their job more difficult? Sure, no question about it, but if you really want to make their job easier recreate East Germany here.
--

The second reason is this. An argument is sometimes offered we are professionals, so trust us. The problem I have with this is this. I happen to be relatively familiar with methods of some security agencies in this country (FBI and their proxies mostly) by virtue of being their Cointelpro target for years. My experience is their methods are as ruthless, as brutal, as violative of basic human rights as in any regime out there now or in the past. Mueller may claim they do not torture, which may be true, but they sure as hell destroy people lives/careers in the name of national security. I sometimes wonder whether it wouldn't be better if they simply restricted themselves to just waterboarding.

The connection here is - I don't see any other way to put some restrain on their behavior other than to make sure that there will NO ESCAPING of legal responsibility for any violation of anyone's civil rights anywhere, torture included, however well intentioned.

Ensuring national security by NKVD/Stasi methods should not be tolerated in this country under any circumstances. The current FBI/CIA methods are regrettably too close to them for anybody to sleep well.

Bring the full force of law on waterboarders and their facilitators, I say.
 

I just wanted to add that MLS's last post makes his position even more untenable. If, as he says, the Japanese internment was worse than torturing the 3 admitted victims, then using his logic we should not only give Bush a pass, we should encourage him to torture more suspects until he comes just a teensy bit short of however bad MLS thinks the Japanese internment was.
 

-wg-:

The second reason is this. An argument is sometimes offered we are professionals, so trust us.

It's worse than you think. In fact, the reason you should trust them with doing torture is that "they're the professionals", so they know how to do it right.

See here (at Update 3).

Cheers,
 

...this question will arise only if and when the prosecuting agency itself concludes that the conduct was, as hilzoy and I agree it was, patently illegal

The problem is that you're arguing degrees of illegality with respect to an administration that continues to claim that something that is patently torture isn't torture at all.

If there's this level of sophistry about what exactly constitutes "torture," then there will orders of magnitude more sophistry about whether something was "patently" illegal or simply "mostly" illegal.
 

So, what's the bottom line? If a Nazi government tells you that it's legal to torture someone, don't do it, because you'll be liable to prosecution, but if the OLC tells you that it's legal to torture someone, then it's all right?

It's hard to believe that there's an argument about this, when it involves an activity that's been considered torture for hundreds of years, and is one that our government has prosecuted people for, both on our side and on the side of our enemies.

I'd much rather the people who came up with these tortuous decisions be prosecuted, but I cannot believe that the people who carried them out are without culpability.
 

I am not a lawyer. I'm a logician. The distinction between them that's of use here is that I haven't undertaken years of training in the notion that any position, no matter how idiotic, ought to be true as long as (a) I want it to be true, or (b) I'm getting paid by the hour by someone who wants it to be true.

So, now, just for a second, put down your lawyer roles and try to think like a regular person. There is an ongoing legal dispute here whether waterboarding is per se torture; pace Jack, but there are a whole bunch of regular people who wonder whether something that is very similar to a fraternity hazing "prank" ("swirling"), that is undergone by trainees as part of SERE training, and that has been undergone voluntarily by any number of members of the press, could possibly "shock the conscience" in the sense that we expect "torture" to do. You may argue that is ought to shock the conscience, but then I might argue that defending OJ ought to shock the conscience.

So, now, what would be the consequence of what's being argued here? Jack says, correctly I think, that having the advice of the OLC that an action is legal provides a sufficient reason not to prosecute; the counter-argument is that it only applies if it is "reasonable" advice. So now, brace yourselves, I'm going to be asking you to think like a regular person again: if you can only rely on OLC counsel if it's "reasonable", then how can you determine if if the counsel is "reasonable"? Consult a lawyer? Which lawyer? When? (To this I'll add: where? In Iraq?)

Then, if your second lawyer says it's "reasonable", how do you know he's right? Ask another one?

What you're asking here is that all actions be reduced to paralysis while lawyers are consulted. This may be good for lawyers, but it's less than practical for everyone else.
 

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