Balkinization  

Friday, May 02, 2008

What's the Relevance of Altstoetter, Anyway?

Marty Lederman

There's already been a great deal of very interesting and helpful discussion in the comments to my post and Kevin Heller's about the Justice Case and its parallels (or absence thereof) to the actions of the Bush Administration lawyers. Again, however, I think it is difficult to understand what all the fuss is about unless we can all agree on just what the pertinent questions are, and why we are bothering to look to the Nuremberg precedents, anyway.

I don't know for sure whether this is helpful, but here's how I see it:

1. The Justice Case is not very relevant to the question of whether any Administration lawyers are culpable for criminal offenses under U.S. domestic law. Moreover, as I've tried to explain, I think it is not very fruitful to argue about domestic law culpability, because it is unthinkable that there would be any criminal investigations or trials of the lawyers absent evidence that they thought they were facilitating unlawful conduct. And in my previous post I tried to explain why I think no such evidence is likely to be forthcoming (which is certainly subject to dispute, but as to which Altstoetter is not terribly relevant).

2. For domestic law purposes, then, the important question, IMHO, is not criminal culpability, and not questions of legal ethics (as many have argued), but instead whether the lawyers and the President breached a constitutional obligation to faithfully execute the laws. More on this here and here. But cf. David Luban here. And as to that question, too, the Altstoetter example is not terribly germane -- unless one thinks that compliance with the laws of war is itself a constitutional obligation of the President. David Golove, among others, has offered (and is developing) a powerful case that there is such a constitutional obligation, at least as an historical matter. (See also my own preliminary thoughts on the historical question at pages 952-955 and 994-996 of this article.) If there is such a constitutional obligation to comply with the laws of war, the question would then become whether John Yoo and others contributed to a violation of that obligation by advising the President that there were no domestic law restrictions on the interrogation techniques in question, without also advising that the techniques were prohibited under the laws of war. (John did advise (i) that the customary laws of war are not constitutionally binding on the President -- a very contestable question, of course; (ii) that the ICC should not have jurisdiction to try U.S. persons for torture; and (iii) that there might be international criminal exposure anyway, because the Executive branch could not be confident that the ICC itself would conclude that it lacked jurisdiction. (The latter two conclusions are in the "other" August 1, 2002 memo, at pages 221-22 of the Torture Papers.) As far as I know, however, OLC never actually opined on substantive question of whether the CIA techniques would in fact violate the laws of war. Perhaps both the White House and the DOJ thought it was a moot question once OLC had concluded that the laws of war were not binding for domestic law purposes.)

3. The Justice Case might, of course, be germane to the question of whether U.S. government lawyers could be tried in an international tribunal for war crimes or for crimes against humanity. And there are those who think John Yoo, et al., might actually be tried in such a court. I'm highly doubtful that any such thing could happen without a fairly seismic change in U.S. foreign relations. But if it ever did, then of course what the United States itself argued about attorney culpability in the Justice Case could be pertinent to any claims and defenses raised in such an international tribunal.

4. So, if there are unlikely to be any criminal trials, and if the most relevant domestic question has to do with the President's Take Care obligation (and the role of lawyers in helping the President fulfill that obligation), what is an understanding of the Justice Case good for, anyway?

Principally, in my view, it is helpful to address the common public (and academic) debate about whether the provision of legal advice by government lawyers can ever amount to criminal conduct. Of course, almost everyone agrees at an abstract level that the answer to that question is "yes," at least in a case where the lawyers provide advice that they know to be erroneous, and where they also know that such advice will, as in the case of the CIA here, be a necessary precondition to the commission of known crimes. But for reasons I've already tried to explain, I doubt such a case of bad scienter could be established here.

Therefore, what we have here -- most likely -- is a case in which the government lawyers:

(i) (sincerely, if unpersuasively) advised that certain conduct would not violate domestic law;

(ii) also advised that the customary laws of war are not binding on the Executive for purposes of domestic law (a highly contestable proposition, but one that OLC had previously adopted) [NOTE: Subsequent to John Yoo's tenure, the Supreme Court has held in Hamdi and Hamdan -- properly, in my view -- that Congress itself has required the Executive to comply with the laws of war in its military conflicts (including the conflict with al Qaeda). Therefore, OLC lawyers more recently should be advising the Executive branch on whether the CIA techniques comply with the laws of war, even if only as a matter of statutory obligation. I am skeptical that they are giving such advice or that, if they are, they are fairly construing the laws of war.];

(iii) further advised that there should not be jurisdiction of a particular international tribunal (the ICC) to entertain criminal charges in connection with the activity in question;

but also

(iv) warned that there was some possibility that the international tribunal itself would conclude otherwise on the jurisdictional question;

(v) without ever (as far as I know) advising the President about whether the conduct in question would actually violate the laws of war;

where

(vi) the conduct in question does, in fact, violate the laws of war.

The question, then is whether the lawyers themselves violate the laws of war by failing to advise the President that the conduct under consideration violates the laws of war. I was hoping that the Justice Case -- and the U.S. prosecution's own theory of government lawyers' criminal culpability there, in particular -- would shed some light on that question. Kevin Heller suggests that it does not. But Scott Horton, in the comments section, is not so sure. I think this is a very important question, even if it will likely never be at issue in an actual criminal trial. (And if there is such a trial, it will of course be of even greater importance.)

Comments:

The following is what I said in response to Kevin's post at Opinio Juris. While I think you are right that "The question, then, is whether the lawyers themselves violate the laws of war by failing to advise the President that the conduct under consideration violates the laws of war," historical precedent suggests that this is not a question that will be forthrightly addressed owing to the President's usurpation of war powers, as when former Chief Justice Rehnquist authored legal blessings for same in his capacity as assistant attorney general in the OLC for the Nixon administration.

If Kissinger has never been brought to the dock for engaging in a joint criminal enterprise it seems unlkely that either Bybee or Yoo will be.

In fact, if history is any guide, we might someday see Bybee or Yoo sit on the Supreme Court! Recall that it was William Rehnquist who, as an assistant attorney general under Richard Nixon, "came up with the argument that the law mandated presidents to deploy troops 'in conflict with foreign powers at their own initiative'" (Stanley Kurnow). It's clear that Rehnquist's career did not suffer from providing obsequious legal dissimulation on behalf of conspicuous war crimes. Seen in this dark light, and whatever the odious ethical and legal nature of both Yoo's and Bybee's infamous Memos, it pales into comparison to crafting legal sanction for the bombing and invasion of Cambodia.

In fact there's a deep connection between the two administrations in this regard, as Bruce Shapiro made clear several years ago:

'The Bybee memo attempts to erect a legal scaffolding for physical and psychological coercion of prisoners in the War on Terror. Coming from the Office of Legal Counsel, it holds the authority of a policy directive. The memo proposes so finessed and technical a reading of antibrutality laws that all manner of "cruel, inhuman or degrading" interrogation techniques--including beatings and sexual violations like those in Abu Ghraib--simply get reclassified as Not Torture. The memo's language so offends common sensibility that within a few days of its release, White House officials were disavowing its conclusions and selectively declassifying documents allegedly showing the President's commitment to humane treatment of prisoners.

Yet even while putting up a smokescreen of concern for humanitarian treatment of prisoners, the Administration made no attempt to distance itself from Bybee's most crucial theme: unreviewable presidential war powers. Anti-torture laws, the memo argues, simply do not apply to "detentions and interrogations of enemy combatants pursuant to [Bush's] Commander-in-Chief authority." All the documents released by the White House reflect this same obsession with presidential war powers-and in many cases, incorporate Bybee's precise language.

It is in defense of his view of the Commander in Chief's legal impunity that Bybee invokes the Cambodia precedent, citing Rehnquist's 1970 white paper as his principal authority. Rehnquist spelled out his arguments both in that memo and in an article later that year for the New York University Law Review.

One glance at the Rehnquist documents and it is easy to see why his 1970 reasoning resonates throughout the Bush Administration's 2002 and 2003 memorandums. Just as Bybee finds that torture isn't torture, Rehnquist argued that the invasion of Cambodia wasn't really an invasion: "By crossing the Cambodian border to attack sanctuaries used by the enemy, the United States has in no sense gone to war with Cambodia." The Bybee memo offers officials accused of torture the "necessity" defense; in 1970, Rehnquist argued that pursuing Vietcong troops into previously neutral territory was "necessary to assure [American troops'] safety in the field."

In particular, Rehnquist offered the Nixon White House a bold vision of the Commander in Chief's authority at its most expansive and unreviewable: The President's war power, he wrote acerbically, must amount to "something greater than a seat of honor in the reviewing stand." Cambodia--where the devastation of the war and the Nixon Administration's carpet-bombing following the invasion would prepare the way for the Khmer Rouge holocaust--amounted to "the sort of tactical decision traditionally confided to the commander in chief."

For Rehnquist, the invasion of Cambodia in May of 1970 was a dual watershed. On the one hand, it marked the greatest assertion of expansive presidential warmaking power, crystallized in the white paper cited by Bybee. At the same time, protests against the Cambodian invasion led Nixon to centralize the gathering of domestic political intelligence directly in the White House; Rehnquist supported this domestic expansion of executive-branch authority, arguing in court for no-knock entry, preventive detention, wiretaps and other ancestors of today's Patriot Act.

The authority of Nixon and his successors was soon curtailed--at least on paper--by reform-minded legislation: the War Powers Act, the Freedom of Information Act, CIA reform, the War Crimes Act and a host of other statutes. And ever since the invasion of Cambodia, a parade of conservative policy-makers--among them Rehnquist, Rumsfeld and Vice President Dick Cheney--have repeatedly sought to regain the expansive presidential power asserted in Rehnquist's memo.'


As to Marko's suggestion [at Opinio Juris regarding a 'joint criminal enterprise'] in particular: it's rather interesting that while the "key to joint commission is the 'common plan, design or purpose," "the plan need not be formed before the act is commited [!]; it can also be spontaneous. Its presence may be deduced from the cooperation of several persons to carry out a criminal undertaking." Indeed, "the contribution to the crime need not be related to execution, but can consist of any kind of assistance ('assistance in, or contribution to, the execution of the common plan or purpose'). Contributions even at the planning stage are sufficient [!]. It is not [even!] necessary for the joint perpetrators to be organized in a military, political or administrative unit." This does seem to be a rather loose or easy standard for establishing the actus reus elements, while the mens rea element does not at all seem insurmountable. The quoted material is from Gerhard Werle, Principles of International Law (The Hague: T.M.C. Asser Press, 2005): 120-122. As a legal layman, I also consulted William A. Schabas, An Introduction to the International Criminal Court (Cambridge, UK: CUP, 2004), and Robert Cryer, et al. An Introduction to International Criminal Law and Procedure (Cambridge, UK: CUP, 2007).

So, while this is based on the case law of the Yugoslavia Tribunal (ICTY), is this acceptable to the ICC?

And if I'm not mistaken, Kevin's concerns are something like the following: "Perhaps unsurprisingly, this form of liability has proved controversial. The Appeals Chamber's induction of joint criminal enterprise liability from the Second World War cases has been criticized on the basis that the cases do not support the conclusions they reached. Indeed, this was specifically raised by another defendant before the Appeals Chamber, claiming that imposition of liability on this basis violated the nullum crimen sine lege principle." (See Cryer, et al.: 308, above)
 

Sorry if I've missed this, but when ML writes

whether U.S. government lawyers could be tried in an international tribunal for war crimes or for crimes against humanity

does that include the possibility of trial by the courts of a single foreign nation?

Or does "international" mean multi-national, like the IMT?

The latter sense seems obviously wrong, b/c it's evidently possible for an incautious Bushie to wind up in some UK, German, etc. court.

That remains somewhat unlikely, but a Democratic administration might not pitch quite the fit over John Yoo or David Addington that one might think.
 

I think it is not very fruitful to argue about domestic law culpability, because it is unthinkable that there would be any criminal investigations or trials of the lawyers absent evidence that they thought they were facilitating unlawful conduct.

Following up on Patrick S. O'Donnell's comments, it's never been clear to me whether your conclusion is pragmatic or legal. If pragmatic, I'm inclined (sadly but cynically) to agree. If legal, I've never seen you go through the actual analysis of the requisite elements of the potential crimes.

I wouldn't pretend to any expertise on criminal law. However, I've handled a number of civil RICO actions in my practice, including one in which lawyers were primary defendants based on the advice they gave (though they also participated in the wrongdoing in various ways). I find it hard to believe that it's as difficult as you suggest to find criminal liability for the government lawyers who facilitated torture.
 

I meant to add another comment. You have said you think it unlikely that there will be evidence showing that the lawyers thought they were facilitating unlawful conduct. You yourself have, on more than one occasion, referred to Yoo's analysis as "dishonest". I can't reconcile these two conclusions.
 

Mark Field: "You have said you think it unlikely that there will be evidence showing that the lawyers thought they were facilitating unlawful conduct. You yourself have, on more than one occasion, referred to Yoo's analysis as 'dishonest'. I can't reconcile these two conclusions."

Mark: What I tried (perhaps not clearly enough) to explain in Point No. 2 of my post yesterday, was that I think John (i) believed in the ultimate conclusion that the President as CINC could lawfully order that these techniques be used, regardless of statutory restrictions; (ii) perhaps also believed that it is fair to use various canons of construction to reach unorthodox readings of statutes in the service of that first conclusion; but (iii) characteristically and at times dishonestly dissembled on most of the specific, ancillary legal arguments that back-stopped those two basic pillars of the memos.

That's why I conclude that (i) the analysis was dishonest in many particulars; yet (ii) Yoo, et al. believed the presidentially authorized CIA techniques were lawful.
 

Marty:

Why is the operative question in your view whether Yoo sincerely believed in his advice? In other words, why should a international court care one wit about Yoo's bizarre views on the Constitution, the CAT, etc., It seems to me the operative questions are 1) Was there an unlawful scheme / JCE to abuse and degrade prisoners and 2) Did Yoo, through his work in the OLC, knowingly contribute to this scheme.

On the second prong of this test, I agree that failing to advise that certain conduct violates the laws of war (although allegedly permissible under domestic law) might constitute "knowing contribution." The context is key. While not a policy-maker and thus different that the lawyers in the Nazi Justice Ministry, Yoo was specifically asked by the White House to determine what could be done to detainees and as you yourself have suggested the OLC's interpretations of the law are authorative within the Executive Branch. So I am not sure if the distinction between the Justice ministry officials and Yoo is all that salient.

In any case, a court might well infer that failing to advise on the laws of war when a lawyer's view of domestic law allowed the President to violate the laws of war says something about the lawyer's mental state with regards the illegal conduct. But in addition, couldn't a court second-guess Yoo's advice on domestic law and note the complete lack of caveats in his controversial analysis suggests that Yoo wished to facilitate the degrading and abuse of detainees (to possibly avert another 9/11 in Yoo's view)?

In sum, are you really saying that the only way to prove the requisite scienter on the part of Yoo is to find that there is an independent duty (as shown in the Justice Cases or whatever) to advise on the laws of war when domestic law is in conflict?
 

Milan: I am saying that *domestic* prosecution is unthinkable absent some proof that the lawyers believed they were facilitating known unlawful conduct.

I don't have any idea whether such a standard would be relevant to an international court, although I am struck by Kevin's point that the Nuremberg tribunal emphasized that the lawyers there *knew* the conduct was unlawful.

Of course Yoo wished to facilitate virtually unbounded executive discretion to treat the detainees as the President sees fit. I'm not sure how that matters, however. He wasn't "specifically asked what could be done to detainees." He was asked whether U.S. law -- including the CAT -- restricted the executive. He gave what I think was a sincere, if deeply wrong, answer to that question.

If an international tribunal were to try him for violating *international* law, I would think it would be at least relevant (i) whether he believed the conduct violated the laws of war; and (ii) if he had some sort of legal duty, under international law, to inform his clients of that law-of-war constraint, notwithstanding his opinion that CIL does not bind the Executive for purposes of domestic law.
 

There are still more memos which are part of the suite which Yoo has cited in the most recently releasted memo. So the picture which current analysis is examining is incomplete. My guess is the memos have surfaced into the public sphere by orchestrated prioritization, LEAST DAMAGING first, most damaging withheld under the umbrella of presidential privilege. It is worthwhile to continue the studies based on what we have, however, for the purpose of salving what we may of our system of government and its foundation in law.
 

That's why I conclude that (i) the analysis was dishonest in many particulars; yet (ii) Yoo, et al. believed the presidentially authorized CIA techniques were lawful.

Got it. Thanks.
 

How come I get the feeling that Prof. Lederman's conclusion that there should be no legal ethics proceeding brought against Yoo is a too-convenient position to be taken by someone who worked in the same office under President Clinton?

Seriously, any practicing lawyer knows (we all get tested on this as part of the MPRE) that you are supposed to advise your clients about any foreseeable legal exposure, including with respect to doctrines you may personally disagree with or potential interpretations that you might not find persuasive.

And Prof. Lederman's post concedes Yoo didn't do this (i.e., his conclusion that Yoo didn't advise about violations of international war crimes law which could lead to prosecution abroad).

It's such an obvious conflation of the duty of lawyer-as-advisor with that of lawyer-as-zealous-advocate that Prof. Lederman's position can't be taken seriously. Is it the case that maybe he authored something in the Clinton Administration where he didn't exactly present a neutral and realistic statement of existing law? Kosovo, maybe? Extraordinary renditions? Something else?
 

Seriously, any practicing lawyer knows (we all get tested on this as part of the MPRE) that you are supposed to advise your clients about any foreseeable legal exposure, including with respect to doctrines you may personally disagree with or potential interpretations that you might not find persuasive.

That makes for a clear ethical violation, but does it make the advice criminal? I think that's the distinction.
 

Mr. Lederman says:

I am saying that *domestic* prosecution is unthinkable absent some proof that the lawyers believed they were facilitating known unlawful conduct.

There is certainly evidence (and, I'm convinced that there is documentary proof to be discovered) that this is in fact the case. The pattern is clearest (thanks to Phillipe Sand) in the case of the second torture memo. The administration secretly orders low-level underlings to break the law. When the lawbreaking is discovered and the illegal acts are identified as such by people who are qualified to make that judgement, the OLC is called on to retroactively legalize the behavior. In that case, the legal opinion was specifically crafted to address specific actions taken at Gitmo and assurances were obtained from the Criminal Division that no prosecutions would be initiated. To this layman, that sounds like scienter.

According to unrebutted articles in the NYT, this happened in the case of the warrantless wiretapping (after FBI and DOJ officials who knew the law objected to the illegal wiretapping, the OLC 'legalized' it). It appears to have happened with extraordinary renditions. Two days after an anonymous official admitted that terror suspects were rendered to third countries to be tortured (in violation of our treaty obligations), the OLC put out a still-classified memo asserting that it was OK. There are other classified opinions that we don't yet know about. We do know that the OLC decided that they were bound by the President's legal determinations. That very much makes them part of the policy apparatus rather legal advisors.

All of these opinions were classified in an abusive and illegal manner to prevent them from being challenged. Bush himself has made it very clear that having secret legal opinions justifying his actions was an integral part of his policy. These lawyers (Addington, Gonzales, Bybee, Yoo, and Haynes) didn't just fail to advise, they actively worked to implement secret laws that purported to legalize heinous violations of domestic and international law. The import of Altstoetter is that we (the U.S.). by example, have essentially asked other countries to try these men if we fail to. I hope and pray that our nation finds the courage to punish them, but if not, I pray that others will have a greater sense of justice.
 

John Lopresti's suggestion that the releases of the torture memos are being prioritized with the more serious memos yet to come reminds me of the joke where a house sitter calls her travelling friend to inform her "Your grandmother's on the roof" in preparation for later calls telling her friend that her grandmother had died. If the worst is yet to come, we are in deep, deep trouble.
 

milan said...

It seems to me the operative questions are 1) Was there an unlawful scheme / JCE to abuse and degrade prisoners and 2) Did Yoo, through his work in the OLC, knowingly contribute to this scheme.

You appear to be making an criminal accomplice charge against Professor Yoo. However, to be found an accomplice, the accused must have "engaged in conduct which constitutes a substantial step toward the commission of the crime."

Such "steps" are substantive acts in furtherance of the crime. For example, assuming that waterboarding is a crime, a defendant obtaining a place and the equipment to conduct the waterboarding would arguably have engaged in "conduct which constitutes a substantial step toward the commission of the crime" and be criminally liable as an accomplice even if he did not perform the waterboarding itself.

However, I am unaware of precedent for the proposition that rendering a legal opinion that a course of conduct does not violate the law constitutes a substantial step toward the commission of a crime.
 

Again I will say that Marty at some point along the way here thought a crime was done with regard to the Dan Levin memo writing and removal from the OLC.

I note so many here are willing to acquiesce in the idea that a criminal prosecution can not happen. People appear to conflate the idea of whether a criminal prosecution will happen and whether there can be a conviction that is certain.

What I do not understand is why those low level persons who did the bidding of the high-level persons can be convicted and be sitting in jail right now and yet there can be such certainty that the people above would not be subject to criminal prosecution

It seems to me the reason for this is simply a question of political will more than any substantive legal ground. I mean a crack dealer could sincerely believe crack is good for people, yet I am not under the impression that would go very far in a trial.

Again, I think this enormous effort to dissuade persons from going down the prosecution route is relentless. As is the will to resist that acquiescence.

I vaguely remember people saying that Scooter Libby could not be convicted for what he was alleged to have done (I think the line was, "there was no underlying crime.")

Best,
Ben
 

I think what bugs me here is Professor Lederman's apparent agreement with Bart DePalma.

The only way that I can make sense of the good professor's argument is to suppose that presidential power to order torture is in some respect or other a close call. Reasonable minds can differ, and all that.

That concedes entirely too much; I don't think it's plausible; there is no close call here.

Arguing otherwise means acquiescing in the Executive Branch's resort to torture whenever the President decides it's necessary, etc.

Would someone please explain why I'm mistaken here? Because I don't like the conclusion I'm reaching.
 

However, I am unaware of precedent for the proposition that rendering a legal opinion that a course of conduct does not violate the law constitutes a substantial step toward the commission of a crime.

I can't cite precedent on this either, Bart, but could you rule it out? For instance (and I am not saying Yoo did this, I am just exploring the issue): suppose Tom Torturer goes to Larry Legaladvisor and says "I want to electrically shock some terror suspects. I know it is illegal, and I cannot get my superiors to sign off on it unless you give me an opinion saying it is legal. Can you do that for me?" Larry says "Sure", and 2 weeks later, produces a legal opinion (based on flimsy or clearly incorrect reasoning) saying that electical shocks are not torture.

Now, even without a case on point, could you rule out accomplice liability for Larry in that situation?
 

Prof. Lederman:

Perhaps both the White House and the DOJ thought it was a moot question once OLC had concluded that the laws of war were not binding for domestic law purposes.)

Some wags would point out that the OLC (meaning Yoo et al.) and the White House have "concluded that [domestic law is] not binding for domestic law purposes". And in fact, statutory law is much higher on the list of 'mandatory/persuasive authority'. This maladministration, from top to bottom, Dubya to Doan, makes Nixon look like a piker ... or a two-bit crook.

Cheers,
 

william ockham said...

There is certainly evidence (and, I'm convinced that there is documentary proof to be discovered) that this is in fact the case. The pattern is clearest (thanks to Phillipe Sand) in the case of the second torture memo. The administration secretly orders low-level underlings to break the law. When the lawbreaking is discovered and the illegal acts are identified as such by people who are qualified to make that judgement, the OLC is called on to retroactively legalize the behavior. In that case, the legal opinion was specifically crafted to address specific actions taken at Gitmo and assurances were obtained from the Criminal Division that no prosecutions would be initiated. To this layman, that sounds like scienter.

The assumption that the OLC has any authority to "legalize" a course of conduct which otherwise violates the law may be basis for the various arguments made here that Yoo's memo is somehow evidence that he was advancing a criminal conspiracy.

In fact, the OLC has no power whatsoever to legalize a course of conduct which otherwise violates the law. For example, if OLC advised the President that he had the Article II authority to appropriate funds for the Iraq War, that opinion is not law and certainly does not legalize any attempt by the President to appropriate war funds.

Consequently, I cannot see the basis for arguing that a mere opinion constitutes a substantive act to advance a criminal conspiracy.
 

anderson said...

I think what bugs me here is Professor Lederman's apparent agreement with Bart DePalma.

The only way that I can make sense of the good professor's argument is to suppose that presidential power to order torture is in some respect or other a close call. Reasonable minds can differ, and all that.

That concedes entirely too much; I don't think it's plausible; there is no close call here.

Arguing otherwise means acquiescing in the Executive Branch's resort to torture whenever the President decides it's necessary, etc.

Would someone please explain why I'm mistaken here? Because I don't like the conclusion I'm reaching.


I would suggest that you need to distinguish between those who actually entered into an agreement to have the CIA use coercive interrogation on the enemy and those like Professor Yoo who simply rendered an opinion as to what was and was not prohibited under the Torture statute and treaty law.

If waterboarding is actually a criminal act in violation of the Torture statute, then you have a slam dunk case of criminal conspiracy against Bush, Cheney and other principles who approved the CIA coercive interrogation program. However, unless you have evidence that Yoo was among those principles who agreed to implement the CIA program, you do not have a viable conspiracy charge against Yoo.

If your concern is to hold the Executive criminally accountable for what you consider to be "torture," the remedy is to impeach the actual perps, not to persecute Yoo.
 

"Bart" DePalma:

The assumption that the OLC has any authority to "legalize" a course of conduct which otherwise violates the law may be basis for the various arguments made here that Yoo's memo is somehow evidence that he was advancing a criminal conspiracy.

In fact, the OLC has no power whatsoever to legalize a course of conduct which otherwise violates the law. For example, if OLC advised the President that he had the Article II authority to appropriate funds for the Iraq War, that opinion is not law and certainly does not legalize any attempt by the President to appropriate war funds.

Consequently, I cannot see the basis for arguing that a mere opinion constitutes a substantive act to advance a criminal conspiracy.


Umm, maybe people are making that point because that's precisely what this memo did do? (see here as well).

Cheers,
 

If your concern is to hold the Executive criminally accountable for what you consider to be "torture," the remedy is to impeach the actual perps, not to persecute Yoo.

"Don't shoot me, I'm only the lawyer...."

I think Shakespeare had the appropriate riposte....

Cheers,
 

Ok, I'm going to go out on a limb and add some law to this discussion. As I said above, I don't handle criminal cases; all caveats apply.

The best I can do on short notice is to cite CA law. It's often similar to federal law; when that's not the case, CA law tends to require a narrower construction of the elements than federal law does.

I can see several possible theories of liability applicable to the lawyers:

1. Aiding and abetting. Requires proof that an aider and abetter act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose of encouraging or facilitating commission of the offense.

2. Accessory. One who, after a felony has been committed, aids a principal with the intent that the principal may avoid or escape from arrest, trial, conviction, or punishment, having knowledge that the principal committed such felony.

3. Conspiracy. An agreement between two or more persons with the specific intent to commit an offense, followed by an overt act. Interestingly, but far from conclusive I suspect, the SCOTUS held in Dennis v. US that a conviction for conspiracy could stand even when the statute they conspired to violate was unconstitutional.

4. CA law has not, to my knowledge, adopted the doctrine of "joint criminal enterprise". The basic principles of that doctrine, which has been used in the Yugoslav tribunals, can be found here.
 

Thank you for the clarification above, Marty. One minor quibble. While I was perhaps a bit loose in writing that Yoo was "specifically asked what could be done to detainees" - he was nevertheless asked for his interpretation of the CAT as implemented under US law. And as Yoo noted in the August 2002 memo -the first torture memo -: "As we understand it, the question has arisen in the context of the conduct of interrogations of the United States."

In light of the above, it's safe to say that Yoo knew that his advice was going to shape interrogation policy outside the United States, where detainees enjoyed fewer protections under the adminstration's view than they do on US soil. Despite this, the advice he gave on the CAT and other legal constraints was one-sided at best and possibly deliberately slanted towards giving the Executive "maximum flexibility." Given the context in which Yoo gave his advice and the fact that the administration was going to rely on this advice, I don't think it would be a great leap for a court to determine that he had the requisite state of mind when he wrote the memorandum to aid in the abuse of detainees.

Also as to Bart's point whether a legal opinion can constitute a substantial step towards the commission of a crime - I think this is the key point on which any trial would turn. But the lack of a precedent for such a prosecution is meaningless. Surely prosecutors in trying accomplices do not have to show that other individuals have been previously convicted for doing much the same thing in the commission of a separate crime. I don't think Yoo is off the hook because previous regimes that used torture did not bother getting authorization from lawyers.
 

Toss-up question: if it is perfectly legal for OLC to write opinions that amount to get-out-of-jail-free cards, what is the point of having OLC advise on legality of programs at all?
 

jpk:

Toss-up question: if it is perfectly legal for OLC to write opinions that amount to get-out-of-jail-free cards, what is the point of having OLC advise on legality of programs at all?

To get "get-out-of-jail-free cards", of course. See my links above.

Cheers,
 

Arne,

Nice site you have! I just came back from there. Yes, I was familiar with that testimony and was as outraged as everyone else who heard it.

Mukasey actually has a wondrous view of the DOJ and the WH. The executive can't be culpable when he relies on legal advice, the advisors can't be culpable when they act on executive directions.
 

why wouldn't a simple charge of misprision of a felony be applicable ??

http://www.law.cornell.edu/uscode/18/usc_sec_18_00000004----000-.html
 

On the Kevin Jon Heller thread, David Luban noted that Alstoetter turns in part on the use by Defendants of Richterbreife, letters from the Justice Ministry coaching judges on how to handle their political cases, and cases involving Jews and Poles. This discussion is from page 1017-8 of the Alstoetter case from the Mazal library:

"Space does not permit the citation of other instances of this form of perverted political guidance of the courts. Notwithstanding solemn protestations on the part of the minister that the independence of the judge was not to be affected, the evidence satisfies us beyond a reasonable doubt that the purpose of the judicial guidance was sinister and was known to be such by the Ministry of Justice and by the judges who received the directions.

1018
If the letters [the Judges' Letters] had been written in good faith with the honest purpose of aiding independent judges in the performance of their duties, there would have been no occasion for the carefully guarded secrecy with which the letters were distributed. A letter of 17 November 1942 instructs the judges that the letters are to be "carefully locked up to avoid that they get into the hands of unauthorized persons. The receivers are subject to official secrecy as far as the contents of the judges' letters are concerned."

"In a letter of 17 November 1942 Thierack instructs the judges that "in cases where judges and prosecutors are suspected of political unreliability they are to be excluded in a suitable manner from the list of subscribers to the Judges' Letters." "
 

"The question, then is whether the lawyers themselves violate the laws of war by failing to advise the President that the conduct under consideration violates the laws of war."

I am not sure why this is a “very important question.” It might be an interesting question, a bit like discussing whether the Torture Memos violated Islamic law or the Third Law of Robotics (if there is one). But it only becomes an important question if one first postulates a tribunal which claims jurisdiction over Yoo and has some plausible power to enforce the “laws of war” against him. If one grants that premise, then the most important question is how that tribunal came to be and who serves on it. And that the answer to that question is likely to moot arguments about the laws of war.

For example, I suspect that one could make just as good (or bad) a case, in the abstract, that ML’s OLC colleagues violated the “law of war” when they advised on the legality of the Kosovo war. But if they were tried before a panel of Russian and Serb judges formed to punish acts committed by NATO, it wouldn’t make much of a difference what the “precedents” and academic treatises say. Similarly, if one wants to postulate a tribunal formed to investigate acts committed by the U.S. in conducting the war on terror, and further assume that Yoo was arrested and brought before the tribunal, I think we can guess, without knowing anything about the “law of war,” what the outcome would be.
 

Those annoyed at ML (see Anderson, Dilan and Mark Field) on his continual ability to show just how damn hard it is to prosecute (and not just pragmatically) have a point.

We need a guest bloggist to submit occassional consistent views on the other side, as was shown in the tenure series. Or, we can just leave it to comments, I guess, who do a good job.

Anyway ..

"unless one thinks that compliance with the laws of war is itself a constitutional obligation of the President"

Some discussion is linked but basically I don't see why not. Is it somehow deemed not as important "international" law of some sort? But, we are a "nation"
too, and have obligations as such. And, the POTUS must "faithfully" (e.g., sham opinions helping to do the opposite doesn't quite work) execute said law.

As suggested, "history" (the claim concern of certain "originalists" and others) surely thought so. Many lawyers also might point out to instances of states having int'l law and such as part of their own law which must be followed in specific instances.

As the Declaration of Independence implies there are certain things nations "may of right" not do.
 

BTW, the well known Spencer Tracy movie "Judgment at Nuremburg" dealt with "second tier" defendants, including legal (one played by Burt Lancaster).
 

milan said...

Also as to Bart's point whether a legal opinion can constitute a substantial step towards the commission of a crime - I think this is the key point on which any trial would turn. But the lack of a precedent for such a prosecution is meaningless. Surely prosecutors in trying accomplices do not have to show that other individuals have been previously convicted for doing much the same thing in the commission of a separate crime. I don't think Yoo is off the hook because previous regimes that used torture did not bother getting authorization from lawyers.

I agree that lack of precedent does not bar an prosecutor from offering a novel theory of criminal liability. However, if one assumes arguendo that the CIA coercive interrogation program is a violation of the Torture statute and Mr. Bush and his principles were part of a criminal conspiracy to commit this criminal violation, then Yoo's situation is not really novel. The United States has been prosecuting white collar and organized crime for much of the history of the Republic, but I do not recall a single instance where lawyers were prosecuted merely for giving legal advice to the perps.
 

"unless one thinks that compliance with the laws of war is itself a constitutional obligation of the President"

Some discussion is linked but basically I don't see why not.


Lincoln's view was that in war time the President, by virtue of his CinC role, became invested with the laws of war. He used this argument to justify the Emancipation Proclamation. While he never said so expressly, I see no reason to doubt that he believed himself obligated to obey those laws as well. In fact, he was the one who had Lieber codify the laws of war (including a ban on torture) as General Orders No. 100.

That said, Lincoln had some lingering doubts about the legality of the Emancipation Proclamation, as evidenced by his support for the 13th A.
 

The EP was not only a war measure, but one that by its own terms left many slaves in loyal areas in slavery. Thus, the 13A was of special importance for a permanent freedom, particularly its second clause.

As to the other part of Mark Field's comment, it underlines that with power comes responsibility, and Lincoln (used as justification for Bush in some cases) had a good degree of it, even with his excesses.
 

In fact, the OLC has no power whatsoever to legalize a course of conduct which otherwise violates the law. - Bart "Testicle Crusher" DePalma


That is why Yoo is a criminal.

You are drinking, but not thinking...
 

I do not agree with this assessment. The Alstoetter case was brought by the US, not as part of the regular war trials. It describes a large number of actions by the defendants, and identifies them as violations of international law, of the rights of humans. Consider this:
The evidence shows that many of the Night and Fog prisoners who were deported to Germany were not charged with serious offenses and were given comparatively light sentences or acquitted. This shows that they were not a menace to the occupying forces and were not dangerous in the eyes of the German justices who tried them. But they were kept secretly and not permitted to communicate in any manner with their friends and relatives. This is inhumane treatment.
This holding, and many others in the case, establish principles of international law which the US was willing to enforce against the Germans. The US was, at that time at least, willing to be bound by those principles. The abandonment of those principles is the perfidy of John Yoo. This is the first step towards figuring out appropriate sanctions.
 

Imvho, Torture is Never A Close Call for Men and Women of Character and Integrity.

Torture is a close call Only when it's Authorizers and Perpetrators succeed in Lowering the Level of Discussion to the Mechanics of:

1 - What can we 'get away' with, at the expense of

2 - What is the 'Right Thing' to do?

It is CRYSTAL CLEAR that Addington, Yoo, Bybee, Gonzo and Haynes are in the First Group - in all honesty, they may be trapped and culpable, by their own eager doing, for writing Ex Post Facto Justification Opinions - but, in any case, these men are Vermin, hiding from the Light of Principled Justice.

All Other Right Thinking, Right Acting, Principled Lawyers are in the Second Group.

But, We'll never know the difference between the two of them until the Lawyers with Character and Integrity do what Yoo, et al, can't do - Stand Up, like Justice Jackson did, and with Soaring Oratory, Decry the Base, Inhuman, Cruel, Corrupt Service of The Ends Justify the Means Power Elite.

That, imho, was the Import of the Justice Case - Are Lawyers to be Allowed to Serve Power without Conscience, or not?

In the field of Human Endeavor, does the Team with the Trickiest Lawyers Win, or is it the Team with the Best People?
 

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