Balkinization  

Thursday, May 01, 2008

What, if Anything, Does the Nuremberg Precedent Tell Us About the Criminal Culpability of Government Lawyers?

Marty Lederman

There has been a great deal of discussion in the blogosphere and the legal academy about the question of whether the OLC torture memoranda were not merely wrong, horrifying and indefensible, but actually criminal. My own view, roughly speaking, is the following:

1. This is in some sense an academic question, in that criminal prosecution of the lawyers is virtually unthinkable absent evidence that one or more of them actually believed that the conduct they were blessing was, in fact, unlawful.

2. Such evidence of the lawyers' belief in the illegality of the conduct they approved is unlikely ever to emerge because, in some important sense, John Yoo, David Addington, et al., believed in the "correctness" of the conclusions contained in the torture memos. I don't want to overstate this point. I don't think John, et al., actually believed that the arguments they were making, if they ever came to light, would be adopted by many, if any, relevant legal communities. Nor do I think that the Yoo memos purported to present a "balanced" view of the relevant arguments. I don't think John, et al., thought that their arguments would withstand scrutiny if presented to a court. And, perhaps most importantly, I think that John knew full well that many of the specific arguments within his memos about, e.g., the meaning of statutes and the existence of certain criminal defenses, were simply hooey, supported by "authorities" that were at best tendentious and off-point, and at times mischaracterized in a way that can only be presumed to have been dishonest. These are serious failings, as I've tried to show in numerous posts here, and that I hope to elaborate upon in future posts about the March 2003 memo.

However, I think that Yoo, Addington and their crew did believe (i) that their ultimate view about the preclusive constitutional prerogatives of the Commander in Chief is the correct reading of the Constitution (albeit one that others are unlikely to embrace); and, mostly for that reason, (ii) that it is appropriate to apply numerous canons of statutory construction to interpret statutes to be much less restrictive of the executive in wartime than the text and structure of the statutes would allow, or that the lawmakers themselves either intended or would accept.

Indeed -- and this is perhaps the more important point -- it seems to me that they wrote the opinions as they did not in order to describe the law as it is, but instead to try to create the law as it might be (and, in their view, as it should be). That is to say, they were, it seems to me, attempting to lay the groundwork for their now-unorthodox conclusions to evolve to the point where they become legitimate -- and were doing so in order to create a new orthodoxy, a new law of presidential powers. They know full well that, especially in the areas of war powers and national security, the "correct" view of constitutional law is often thought to be determined, at least in part, by a settled consensus among the political branches. They also were aware that this law of presidential powers can only be developed in a pro-presidential direction, if at all, if Presidents and their lawyers make novel claims of authority -- repeatedly -- and those claims are not resisted, or are even ratified by, the legislature and the people (and sometimes even by the courts).

When, if ever, such "aspirational" constitutional interpretation by executive actors is appropriate -- and whether it must be done openly, and with full candor -- are very important and difficult questions. For now, my point is merely to describe what I think was going on here, in order better to understand why actual criminal prosecution is almost unthinkable.

3. OK, but the fact that criminal prosecution is unlikely does not mean that the question of whether the lawyers committed crimes is unimportant. In particular, I have argued that it is imperative to understand whether what the lawyers did here is in any important sense analogous to conduct that the United States itself has treated as criminal in prior conflicts, because (at the very least) if it is so analogous, and the lawyers have violated the law and committed crimes, then there can hardly be any justification for their conduct along any other metric, particularly in assessing whether they helped the President to violate his constitutional obligation to take care that the laws are faithfully executed. (I'm putting to the side here the rare, virtually inconceivable case in which the President and his lawyers concede that they have engaged in civil disobedience in the service of a higher end, such as where it was necessary in order to preserve the Republic (and thus the Constitution) itself. Cf. Lincoln's "all the laws but one" speech.)

And, surely, the most prominent and substantial historical precedent here is the Justice Case in the Nuremberg tribunals, in which the U.S. itself led the prosecution of several Nazi Ministry of Justice officials -- government lawyers -- for their involvement in the execution of the infamous “Nacht und Nebel,” or "Night and Fog," decrees. The Justice Case is often invoked as an historical analogy for the criminal culpability of Bush Administration lawyers. Like many others, therefore, I have been wondering whether that is in fact a fair analogy. What was it, exactly, that the U.S. prosecutors claimed the German lawyers did to deserve criminal punishment? Was it, for instance (as some have suggested), that the lawyers advised German officials that the "Nacht und Nebel" decrees were lawful under German domestic law, while failing to also tell their government clients that the decrees would nevertheless violate the laws of war and constitute crimes against humanity? If so, then perhaps the Justice Case might have a lot to say about our current situation, because John Yoo, et al., in effect advised the President that he could authorize torture and like conduct under domestic law, and further informed him that he could, at least as a matter of domestic law, simply ignore the laws of war.

All of which is a long-winded way of introducing the important work of a guest blogger, Kevin Jon Heller of the University of Auckland (and Opinio Juris), who is actually undertaking a comprehensive and very important new study of what, exactly, the prosecution's theories of culpability were at Nuremberg, especially in the Justice Case. In a forthcoming post, Kevin argues that the Justice Case might have less to teach us about the possibility of criminal culpability of Bush Administration lawyers than has previously been suggested. I don't know for certain whether Kevin's account is subject to serious debate or question, since I haven't yet been through the primary materials myself. But I do know that Kevin has looked more closely at this question than any other recent scholar, and that his very important work will be the starting place for any further discussion about the Nuremberg tribunals and the torture memos.

Comments:

Great topic, and I'm looking forward to learning more about it.

One quibble w/ the ML post:

However, I think that Yoo, Addington and their crew did believe (i) that their ultimate view about the preclusive constitutional prerogatives of the Commander in Chief is the correct reading of the Constitution (albeit one that others are unlikely to embrace)

I don't think this can possibly be the standard. In what context in the criminal law is the completely unreasonable sincerity of the criminal's beliefs so relevant?

Yoo's job at OLC did not involve his theorizing about what the ideal law *would* be in the ideal U.S. He was supposed to be delineating the actual scope of the law and its *likely* applications.

I think the case for criminality comes in where it's clear that Yoo didn't even do a serious job on the memos -- Youngstown etc. -- and that they were not even seriously meant to address the ostensible questions, but rather as OLC get-out-of-jail-free cards, as cover for illegal acts.

And to answer the question of Yoo's intent there, I think we don't have to read his mind -- we can simply ask whether the memos bear the signs of being the serious work product of a minimally conscientious OLC lawyer.
 

Anderson asks,

I don't think this can possibly be the standard. In what context in the criminal law is the completely unreasonable sincerity of the criminal's beliefs so relevant?

That has, in fact, been the standard in criminal tax cases ever since the Supreme Court's utterly wacky decision in Cheek v. U.S., 498 U.S. 192 (1991).
 

Marty:

I look forward to hearing about Professor Heller's findings.

BTW, you had mentioned offering your own substantive legal criticism of Yoo's arguments in the memorandum. Do you still intend to do so?
 

I too look forward to this topic.

Nazi comparisons are usually suspect from the start, however it would be very interesting to study the Reich Ministry of Justice in the 1935-1945 time period and how it and its lawyers adjusted to the political acts of the National Socialists. There seems to me at least an accomodation then that in some ways at a broad structural level bears at least a faint resemblance to some of the things we have done: legalizing extra-territorial detentions, restricting access to counsel, retrospective laws, dual judicial systems, etc.

Their closest approach to our "enemy combatant" status was the way they handled partisans, primarily in the Soviet Union. There they were using enhanced interrogation prior to "liquidation"[their charming term]. In contrast we have been infinitely more humane.
 

anderson:

I don't think this can possibly be the standard. In what context in the criminal law is the completely unreasonable sincerity of the criminal's beliefs so relevant?

I agree. Yoo's intent is important, but not in the way Marty suggests.

The alleged "crime" we are speaking of is conspiracy.

Conspiracy requires proof of Yoo's agreement with others to carry out a criminal act and his intent that the act should be carried out.

Whether the act itself is criminal is a separate element for the prosecution to prove. Yoo's belief that the act is unlawful is not a legal defense to this element.
 

That has, in fact, been the standard in criminal tax cases ever since the Supreme Court's utterly wacky decision in Cheek v. U.S., 498 U.S. 192 (1991).

Yes, but the statute in Cheek required "willful" evasion of the tax laws. I may be wrong, but I don't believe that any of the statutes under which Yoo, et al. might be prosecuted include that requirement.

Even under Cheek, the misunderstanding of the law must be in good faith. That doesn't seem consistent with Prof. Lederman's characterization of the torture memos. To make this point clear, I want to emphasize that when I say the memos were not written in good faith, I am NOT the authors' beliefs -- those were in good faith. I'm referring only to the legal arguments offered in support regarding the actual state of the law. David Addington may, in good faith, believe the President ought to have certain powers. He cannot, however, believe that the memos themselves constituted a good faith statement of current law.
 

The alleged "crime" we are speaking of is conspiracy.

Conspiracy requires proof of Yoo's agreement with others to carry out a criminal act and his intent that the act should be carried out.


You've made this point several times before. Are you seriously claiming that Yoo wrote his memorandum without realizing that it would be used as legal cover for actual acts?
 

Perhaps I am mistaken, or perhaps things have been evolving since the creation of the Counsel's office within the White House (which dates back only to Nixon, as I recall), but my understanding is that the Opinions of the Attorney General, prepared by the OLC, are supposed to represent the official statement within the Executive Branch of what the law is; the White House Counsel is supposed to look out for the President's parochial interests and advocate for the office; and the Solicitor General is supposed to determine the litigation posture of the US Government. So the idea that the OLC should be taking advocacy positions is foreign to its purpose (which, if I recall correctly, arises from the Anti-Deficiency Act as a way to protect government employees acting in good faith reliance from personal liability for making expenditures later found to be unauthorized). Of course, with the philosophical backing of the unified executive theory and the political use of the appointment power, the idea of independent, expert islands within the executive has been pretty well eviscerated. But surely there are some limits -- can you imagine a President ordering the director of NIST to make its standard inch smaller so the President's buddies in the auto industry can claim more miles per gallon?
 

Prof. Lederman:

There has been a great deal of discussion in the blogosphere and the legal academy about the question of whether the OLC torture memoranda were not merely wrong, horrifying and indefensible, but actually criminal. My own view, roughly speaking, is the following:

1. This is in some sense an academic question, in that criminal prosecution of the lawyers is virtually unthinkable absent evidence that one or more of them actually believed that the conduct they were blessing was, in fact, unlawful.


Is this actually true? I know there's a lot of hand-waving about "general intent" crimes versus "specific intent" ones (particularly from the lawyers that have wanted to insist that, for the actual torture, the torturers needed the "specific intent" to cause the suffering and that they did the torture for that purpose [and that purpose only, blah, blah, blah ... so that the "actual intent" to get information as opposed to getting information by use of severe pain as opposed to just causing severe pain for the fun of it would negate this element of "specific intent"]). But is this really sound? Does such a "specific intent" crime really require that the perp do the crime for the prohibited purpose only, or for the prohibited purpose primarily? At some point, doesn't a "reasonable person" standard intrude, so that a "reasonable person" would have seen that the necessary consequences of acting on their "intent" would in fact be illegal?

For instance, assuming that felony theft requires a "specific intent" on my part to permanently deprive someone of the use of their possession that I've stolen (whereas, say, "joyriding" doesn't). If I take the car for a spin and return it, I've committed "joyriding" but not felony theft. If I take the car with the intent of crashing it off the Pacific cliffs here, can I really say that this was my "specific intent" and thus that I've committed no crime of "grand theft"? Wouldn't a prosecutor say that while my "specific intent" was to just crash the car, the effect of doing such, as anyone could see, would be to also result in the permanent deprivation of the owner of their use of the car, and thus that I am guilty of "felony theft"?

Similarly, even if the lawyers here thought everything they did was legal, if the "reasonable person" could see that the inevitable result (and in fact the desired result) would be that people suffered pain as a consequence of a conspiracy with other to engage om torture of them, isn't that illegal?

Letting people thinking that what they are doing is legal excuse their violation of the law is a pretty big loophole.....

Cheers,
 

I wonder how one applies a "historical precedent" such as Nuremberg. If we are to give precedential weight to the fact that the Nazis were prosecuted for certain offenses, are we to give similar (or any) weight to the fact that the Allies, including the Soviet Union, were not prosecuted for anything. For example, would the prosecution of Nazi officials involved in the invasion of Poland stand for the proposition that it is unlawful to engage in aggressive war if one invades from the west, but not the east?
 

From a legal ethics point of view, it matters very much whether John Yoo and other OLC lawyers actually believed what they wrote. If they did, the relevant issue is one of competence, not one of candid advice and independent judgment. And fraud, wilfullness, and specific intent crimes are out of the question.

I've assumed that Yoo actually believed what he wrote at OLC, because of its continuity with what he's said before and after his stint at the OLC.

However, there was an intriguing comment attributed to Yoo following the Hamdan decision: "what the court is doing is attempting to suppress creative thinking.... It could affect every aspect of the war on terror."

That phrase jumped out at me because of my experience in the old Savings & Loan fallout litigation. I was told that accounting treatments are sometimes called "aggressive" or "creative," and that of the two the term "creative" was far scarier.

So, assuming that his quote means that some portion of his OLC work was "creative," what exactly was creative? Creative in what sense? And when a lawyer is giving creative advice, isn't the lawyer obligated to inform the client of that fact? Anyone investigating the OLC memos will need to explore that.

John Steele
 

enlightened layperson said...

BD: The alleged "crime" we are speaking of is conspiracy. Conspiracy requires proof of Yoo's agreement with others to carry out a criminal act and his intent that the act should be carried out.

You've made this point several times before. Are you seriously claiming that Yoo wrote his memorandum without realizing that it would be used as legal cover for actual acts?


Drafting a legal memorandum is not itself a crime. The alleged war crime was the CIA coercive interrogation program.

There is no evidence of which I am aware that Yoo entered into an agreement with others to have the CIA implement its coercive interrogation program or even knew about the program or even the techniques being considered.

As for the intent element of conspiracy, Yoo's memorandum expressly states that he is not giving an opinion as to whether or not to implement any particular interrogation policy.

Hell, the element requiring the prosecution to prove that the CIA interrogation program is "necessarily" a criminal act is hardly a slam dunk.

The difference between the Nuremberg case and the Yoo memo is that the Nazi lawyers were convicted of actually participating in unlawful war crimes, not merely drafting a memorandum of law interpreting war crimes provisions.
 

I think it's fairly clear that on Marty's standard, nearly every defendant tried in the Justice Case would have been acquitted. Indeed, they were all capable of giving a persuasive articulation of why their conduct was completely lawful under the law of Germany as it applied at the time. And that was the core of their defense.

The prosecutors and the U.S. judges refused to accept this reasoning, stating that "as lawyers" they should have had a better understanding of the limitations provided by Geneva and the Hague Convention. But of course this was 1946, and the restraints of Geneva and the Seventh Hague Convention were not nearly so sharp as today.

The argument that Heller will advance is that the Justice Case does not support the idea that an attorney-advisor can be charged solely on the basis of his advice. Stated just that way, he's surely correct, because the evidence offered in the Justice Case went beyond just legal advice. But the advice was right at the core of the decision in the Nacht- und Nebelerlass case. More on this to come, however.

In the United States, it seems unlikely that any of these issues will be reached because of the notions of qualified immunity advanced by the DOJ in defense of DOJ actors. I expect that the U.S. judiciary which is in the thrall of the Bush Administration--which is most of the U.S. judiciary--will buy these ideas. And that makes a liar of Justice Jackson, who stated in opening the trials that the U.S. in bringing this charges would "put the chalice to its own lips." Obviously the Bush Administration has a very different view.

Conversely, this immunity notion will bolster arguments that foreign jurisdictions have the right to charge and act on these cases. So we're likely to see the matter develop in quite different tracks in the U.S. judiciary and abroad.
 

Just to be clear, Scott: I am not proposing that legal advisers be home free if they are only asked whether something violates domestic law, and they fail to inform their clients that notwithstanding domestic law, the conduct violates the laws of war. I don't know how that case should be handled -- particularly for lawyers such as Yoo, who are specifically advised their clients that there *may be* an international law violation, but that such international law norms do not affect domestic law obligations -- I'm just raising it as an interesting question.
 

"Indeed -- and this is perhaps the more important point -- it seems to me that they wrote the opinions as they did not in order to describe the law as it is, but instead to try to create the law as it might be (and, in their view, as it should be)."

I guess I'll never understand the law.

Suppose John Yoo thought that the law should allow the President to personally execute anyone he wanted, and wrote a legal brief supporting this position. If the President then shot two or three leading Democrats and cited this brief as legal justification. Yoo wouldn't have any legal responsibility?

Apparently it's impossible to convict anyone of war crimes unless they are on the losing side.
 

I look forward to reading Professor Heller on this.

I have looked at the primary materials to some extent although not in the depth they deserve. What they do seem to stand for is the proposition is that the responsibility of lawyers qua lawyers can be determined by the general principles of criminal law. I think this is an important point, completely missed by Brian Leiter and some others on this blog.

Writing a memo by itself is not a war crime, of course, but when that memorandum authorizes and outright encourages the degradation of detainees in response to a specific request regarding how to treat detainees from the White House, one can plausibly argue that there is a basis to charge the author for his role in the eventual torture of detainees. Of course, a court would have to find that torture was committed but I think it's safe to say that most courts would have no problem making such a determination with regards waterboarding and other acts apparently committed by US interrogaters.

Marty raises an interesting question about whether lawyers have a responsibility to advise on international law when it is odds with domestic law. But I think an answer to this question is not necessary to hold Yoo and others liable for war crimes. Purposely failing to advise on constraints of international law or encouraging a policy-maker to ignore international law on torture may suggest something about the lawyer's state of mind, but the requisite mens rea for aiding and abetting could be inferred by other acts. In Yoo's case, the claim in the memo that any abuse heaped on the detainees can be justified by the threat of another 9/11 or numerous statements since that interrogaters require maximum flexibility to properly carry out the war on terror.

This is to say, I take the point that Yoo may genuinely believe that the President can ignore treaties and acts of Congress that touch at all on his Commander-in-Chief Powers. But given the universal condemnation of torture this argument is likely to be as successful as that advanced by the defendants in the Justice cases that all their actions were pursuant to and consistent with decrees by the Nazi regimes.

I apologize for the length of this post, but here is a highly salient passage from the Justice cases:

"Some of the defendants took part in the enactment of laws and decrees the purpose of which was the extermination of Poles and Jews in Germany and throughout Europe. Others, in executive positions, actively participated in the enforcement of those laws and in atrocities . . . The overt acts of the several defendants must be seen and understood as deliberate contributions toward the effectuation of the policy of the Party and State. The discriminatory laws themselves formed the subject matter of war crimes and crimes against humanity with which the defendants are charged. The material facts which must be proved in any case are: (1) the fact of the great pattern or plan of racial persecution and extermination; and (2) specific conduct of the individual defendant in furtherance of the plan. This is but an application of general concepts of criminal law."
 

I wonder how one applies a "historical precedent" such as Nuremberg. If we are to give precedential weight to the fact that the Nazis were prosecuted for certain offenses, are we to give similar (or any) weight to the fact that the Allies, including the Soviet Union, were not prosecuted for anything. For example, would the prosecution of Nazi officials involved in the invasion of Poland stand for the proposition that it is unlawful to engage in aggressive war if one invades from the west, but not the east?

I think this expresses a common misconception regarding what constitutes "precedent". When courts talk about precedent, what they mean is that previous decisions have reached a settled conclusion on an issue. This means, usually, that the issue has been litigated frequently and that the common conclusion has persisted for a reasonable period of time.

If we accepted every single past act as "precedent" in some sense, then we'd hardly be able to condemn anything today. History is littered with examples of people doing stupid and evil things, yet escaping unpunished. Those aren't "precedents", they're moral lessons.
 

Suppose John Yoo thought that the law should allow the President to personally execute anyone he wanted, and wrote a legal brief supporting this position. If the President then shot two or three leading Democrats and cited this brief as legal justification. Yoo wouldn't have any legal responsibility?

I don't think you need to preface your example with the word "suppose". So far as I can tell, John Yoo DOES think this is the law (though he might limit the case to one in which the President honestly believed the shooting necessary to save the country).
 

mark hits the nail right on the head.

this is a moral test and how we handle it will say a lot about the type of conduct we are willing to overlook.

i am suspcicious of any argument, not just Heller's, that suggests somehow the prosecution of germans for war crimes at Nuremberg suggests nothing about the what should be done domestically with Yoo at al.
 

burnspbesq:

[Anderson]: I don't think this can possibly be the standard. In what context in the criminal law is the completely unreasonable sincerity of the criminal's beliefs so relevant?

That has, in fact, been the standard in criminal tax cases ever since the Supreme Court's utterly wacky decision in Cheek v. U.S., 498 U.S. 192 (1991).


Is there a difference between crimes that are malum prohibitum and crimes that are malum in se. IIRC, when it comes to tax laws (and related crimes having to do with financial transactions), many of these are malum prohibitum crimes, where you have to know that the law specifically prohibits something (and if you thought different, or were simply blissfully unaware, you're off scott-free). But that doesn't hold for malum in se crimes.

Cheers,
 

"However, I think that Yoo, Addington and their crew did believe (i) that their ultimate view about the preclusive constitutional prerogatives of the Commander in Chief is the correct reading of the Constitution (albeit one that others are unlikely to embrace). . ."

This proposition gives me a big logical problem. Suppose I re-parse this statement as follows (how does it look then?):

"However, I think that Ohlendorf, and the Einsatzgruppen crew did believe (i) that their ultimate view about the anticipatory self-defense justification for eliminating large numbers of Jews is the correct reading of the ultimate imperative of homeland defense (albeit one that others are unlikely to embrace)...."

Perhaps with this rephrasing, you can see my problem with the essential logic of the initial proposition.

==============

[At Nuremburg, the principal defendant, General Dr. Otto Ohlendorf, patiently explained why his unit had killed about 90,000 Jews. Killing all Jews and Gypsies was necessary, he said, as a matter of self-defense. According to Ohlendorf, it was known that the Soviets planned total war against Germany. A German pre-emptive strike was better than waiting to be attacked. It was also known that Jews supported the Bolsheviks; therefore, all Jews had to be eliminated. But why did he, the father of five children, kill the little babes, thousands of them? The bland reply was that if the children learned that their parents had been eliminated, they would grow up to be enemies of Germany: long-range security was the goal. Ohlendorf lacked facts sufficient to challenge Hitler's conclusions. According to him, it was all very logical.]
http://www.un.org/Pubs/chronicle/2005/issue4/0405p03.html
 

"Indeed -- and this is perhaps the more important point -- it seems to me that they wrote the opinions as they did not in order to describe the law as it is, but instead to try to create the law as it might be (and, in their view, as it should be)."

Unfortunately if this is indeed the case, Yoo sought to argue what should be from existing law. This is a freshman-level (maybe sophomore) case of ignoring Hume's Guillotine.
 

The discriminatory laws themselves formed the subject matter of war crimes and crimes against humanity with which the defendants are charged.

Bingo, Milan. Exactly the quote for the case.
 

hank gillette said...

Suppose John Yoo thought that the law should allow the President to personally execute anyone he wanted, and wrote a legal brief supporting this position. If the President then shot two or three leading Democrats and cited this brief as legal justification. Yoo wouldn't have any legal responsibility?

What crime do you suppose Yoo committed in your hypothetical?

The crime there is the alleged murder. You do not allege that Yoo had any part in committing the crime or conspiring to commit the crime. Instead, Yoo simply argued before the fact that such an act is not murder.

Rendering an erroneous legal opinion is not a crime otherwise every single lawyer here including myself would be criminals.
 

milan said...

Writing a memo by itself is not a war crime, of course, but when that memorandum authorizes and outright encourages the degradation of detainees in response to a specific request regarding how to treat detainees from the White House, one can plausibly argue that there is a basis to charge the author for his role in the eventual torture of detainees.

That is an interesting thought.

Is there a federal crime of incitement which could be applied here?

The crime of incitement exists under English Common Law, but I do not recall it being a part of the US Code.
 

Michael:

Their closest approach to our "enemy combatant" status was the way they handled partisans, primarily in the Soviet Union. There they were using enhanced interrogation prior to "liquidation"[their charming term]. In contrast we have been infinitely more humane.

Oh, the U.S. will seek the death penalty in their "show trials". If you think it "infinitely better" that they get the "show trials" before the execution, more power to you. But I think that's setting the bar a bit low....

Cheers,
 

Conspiracy requires proof of Yoo's agreement with others to carry out a criminal act....

Is that "carry out an act that happens to be 'criminal' as a matter of law"? Or "carry out an act that the actor knows (or thinks) is criminal"?

Cheers,
 

As for the intent element of conspiracy, Yoo's memorandum expressly states that he is not giving an opinion as to whether or not to implement any particular interrogation policy.

It's not that Yoo's actions were and indication of what he had in mind in writing the memorandum, and that his memorandum is the guilty act.

It's that his memorandum is a sign of his intended actions as a whole (and was part of such actions as a whole), such actions perhaps constituting a conspiracy. The memorandum might be considered one positive act (just as providing a gun to assassins might be the same, even though the simple act of providing a gun to someone is not illegal per se) in furthering that conspiracy.

Cheers,
 

Arne,

If you are referring to the Gitmo trials, then I really doubt (and pray) we will see any death penalties.

I would guess that there are way too many problems with the quality of evidence available to the prosecution.
 

The crime there is the alleged murder. You do not allege that Yoo had any part in committing the crime or conspiring to commit the crime. Instead, Yoo simply argued before the fact that such an act is not murder.

Rendering an erroneous legal opinion is not a crime otherwise every single lawyer here including myself would be criminals.


It needs pointing out that the military and such were reluctant to engage in these actions (and the JAG corps was screaming, and the FBI seemingly recusing themselves). The memo was intended to allay the fears of others and to persuade them to participate in (or at least go along with) the acts of torture.

Cheers,
 

Michael:

If you are referring to the Gitmo trials, then I really doubt (and pray) we will see any death penalties.

I would guess that there are way too many problems with the quality of evidence available to the prosecution.


I think you're wrong. They doan need no steenkin' evidence. Click the link I gave you.

And they will go for the death penalty. Perhaps it is deserved if those accused did the things they are alleged to have done (although I disagree with the death penalty in all cases). But the point is that you really need to have at least the vestiges of a fair trial if you're going to execute someone. Why they can't try them the way they try (and convict) your everyday serial murderers is beyond me.

Cheers,
 

Marty,

Thinking a criminal act is lawful is no defense, see IMT Charter art. 7:

"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."

It follows that the IMT Charter imposes criminal liability whenever someone intentionally commits a proscribed act regardless of its legality in domestic law, and equally, that to enact or promogulate law to aid or abet such crimes is be a criminal act in and of itself.

Your reasoning would excuse Adolf Hitler from the Holocaust.
 

In contrast we have been infinitely more humane.

You know, I am so _____ tired of people who mistake themselves for someone who's made a sensible argument, when they say "at least we're not as bad as al Qaeda/the Nazis/the Communists/the Inquisition/the Khmer Rouge/the Japanese Army/the Mongols/the Aztecs/Jeffrey Dahmer ...."

Please, out of consideration for my country, don't pretend that's supposed to be a compliment to the United States of America.
 

Why they can't try them the way they try (and convict) your everyday serial murderers is beyond me.

Because the people who are gathering evidence against the serial murderers don't torture them in secret prisons for a few months first.

In civilized countries, that kind of thing makes prosecution a bit more difficult.

Didn't occur to the Cheney-Rumsfeld Torture Factory, however, because they had Addington and Yoo and Haynes reassuring them that civilized trials wouldn't be necessary.
 

Anderson,

"You know, I am so _____ tired of people who mistake themselves for someone who's made a sensible argument, when they say "at least we're ...."

In my own case, I wasn't making an argument with that final observation. But "infinitely" was too strong a modifier. I retract it.

Arne,

As for the show trials. I think the government will not prevail in its quest for these men's lifes. But not for lack of trying.

Coerced evidence is inadmissible (or so I thought)stateside. I'm not sure it is going to carry any weight at Gitmo either. If they convict on it and the detainees executed...then we would be seeing a war crime.

And yes, I too oppose the death penalty in all cases.
 

Michael:

Coerced evidence is inadmissible (or so I thought)stateside.

"We make the rulz here."

See my link above, and see also this page. Coerced evidence (a kinder, gentler term for confessions extracted under torture) is admissible under some conditions ... which aren't hard to achieve.

These are not regular trials, and the maladministration has made clear its opinion that the Fifth Amendment doesn't apply.

Cheers,
 

Bart DePalma said:

What crime do you suppose Yoo committed in your hypothetical?

I don't have an answer for that. Perhaps, like John You, I am arguing based on what I think the law ought to be, rather than what it is.

The crime there is the alleged murder. You do not allege that Yoo had any part in committing the crime or conspiring to commit the crime. Instead, Yoo simply argued before the fact that such an act is not murder.

Suppose I am with a friend who is having a bitter argument and he gets so angry that he says that he wants to kill the other person. I hand my friend a loaded gun and he shoots the other person. Do I have any legal responsibility?

Rendering an erroneous legal opinion is not a crime otherwise every single lawyer here including myself would be criminals.

Were you making your erroneous legal opinion in good faith? Did you actually think the legal precedents supported your opinion?

I haven't seen anyone argue that Yoo's brief was competent. The typical critique is that it wouldn't be acceptable from a first year law student.

Yoo is a tenured professor at a prestigious law school. How substandard does a legal opinion have to be before we can say that it is not a true legal opinion, but an effort to provide cover for criminal acts?

The impression I get is that the administration wanted a legal opinion that said they could torture terrorist suspects and that they asked Yoo to provide one. His caveat aside, it seems unlikely that he was unaware of why they wanted it or what they would do with it. Whether or not that can be proved or if it is even criminal behavior may be the question. Morally, I don't see Yoo as any different from any other war criminal.
 

TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, Vol. III, Case No. 3, The "Justice Case", United States against Josef Altstoetter, et al. (1947); available at the Mazal Library HERE.
 

TRANSLATION OF DOCUMENT 1964-PS

1942 REICHSGESETZBLATT, PAGE 535

Decree of the Fuehrer regarding special jurisdiction of Reich Minister of Justice 20 Aug 1942.

A strong administration of Justice is necessary for the fulfillment of the tasks of the great German Reich. Therefore, I commission and empower the Reich Minister of Justice to establish a National Socialist Administration of Justice and to take all necessary measures in accordance with my directives and instructions made in agreement with the Reich Minister and Chief of the Reich Chancellery and the Leader of the Party-Chancellery. He can hereby deviate from any existing law. [italics mine]

Fuehrer Supreme Headquarters 20 August 1942

The Fuehrer
ADOLF HITLER

Reich Minister and Chief of Reich Chancellery
Dr. Lammers
 

Something that appears important to me is the way many of the actors in the torture-is-legal scandal consciously deceived others as they developed the policy. I believe this is evidence of bad faith and knowing criminality -- "consciousness of guilt" -- by, variously, John Yoo, William Haynes II, Douglas Feith, and David Addington. I provide examples here: "Practice to deceive."
 

Something that appears important to me is the way many of the actors in the torture-is-legal scandal consciously deceived others as they developed the policy. I believe this is evidence of bad faith and knowing criminality -- "consciousness of guilt" -- by, variously, John Yoo, William Haynes II, Douglas Feith, and David Addington. I provide examples here: "Practice to deceive."

# posted by Thomas Nephew

I agree. That's why I don't buy for as long as a fraction of a second Marty's mollifying notion that the gang of torture thugs acted "in good faith" because "in a panic".

Good faith does not result in the planning and imposing of the worst violations of law to the exclusion of all other considerations.

Did they discuss the actual law, express their reluctance and hesitancy to go that route? I see no evidence of that. I simply see an authoritarian ideology being in a position to implement its views. And keeping all of it secret both because they knew it was illegal, and because they knew the vast majority would oppose it. It's esentially the same as their conduct in everything they've done -- including economic policies intended to effectuate their ideological opposition to, as example, all forms of social welfare except the corporate. And their intent to eliminate them.

All of their actual program has been implemented in secret because they knew the vast majority oppose their program. We the people heard Bushit's program during 1998-99 -- and rejected it. They nonetheless bullied and stole their way into control of the gov't -- against the will of We the people -- and immediately set about implementing the program We the people rejected.

These are not people who know the meaning of good faith, who care about the meaning of good faith, or who respect good faith (being a "sucker"); therefore they are not people who act "in good faith". They believe in lawlessness as the norm. These are the people who, found guilty based upon overwhelming evidence, including video of them committing their crimes, will never admit guilt, will never admit having done wrong. Not because they believe they haven't done wrong; but because they believe themselves to be entitled, exceptions to the rules which exist for all the "suckers".

There isn't an iota of "good faith" among election thieves who are about overthrowing the Constitution.

Why Marty gives them such flatly inapplicable, and undeserved, slack is the question. It appears to me to be a form of denial essential to ultimately absolving them of having done wrong -- perhaps because he can't bear to face the fact of the subversion, corruption, and abuse of the OLC.
 

There are gains for all our losses. There are balms for all our pain. But when youth, wow gold, departs it takes something from our hearts. And it never comes again. We are stronger, and are better, under manhood's sterner reign: Still we feel that something sweet Followed youth, with windchimeinc, and will never come again. Something beautiful is vanished, just like an office chair desk, or a light bulb. And we sigh for it in vain; We behold it everywhere, On the bar stools, and in the only mirror, But it never comes again!
 

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Oil painting is the process of drawing oil paintings with pigments that are bound with a medium of drying oil — especially in early modern Europe, linseed oil painting. Often an oil such as linseed was boiled with a resin such as pine resin or even frankincense; these were called 'varnishes' and were prized for their portrait oil painting and Classical Oil Painting. Other oils occasionally used include poppyseed oil, walnut oil, and safflower oil. These oils confer various properties to the quality oil paintings, such as old master's oil painting or different oil painting reproduction. Certain differences are also visible in the sheen of the bouguereau oil painting depending on the oil. Painters often use different oils in the same oil painting depending on specific pigments and effects desired. The paints themselves also develop a particular feel depending on the medium.


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What makes a salvador dali oil painting "famous"? Is it the painter? Everybody knows who Picasso is, but could you tell his work from, say, Braque's? Likewise, most anybody could pick a van Gogh Oil Painting out of a crowd, but if you had to pick just one, which would it be? john constable oil painting? john waterhouse oil painting? There are dozens. No, these quality oil paintings celebrates what I, the art know-it-all that I am, have determined to be the most recognizable oil paintings in the world, at least from an American standpoint.
 

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