Obama Administration to consider prosecution of lawyers for Torture: But why just the lawyers?

Author: Dapo Akande
Filed under: EJIL Analysis

Thursday
Apr 23,2009

On Tuesday, President Obama suggested that the United States might consider prosecution of some of the individuals who are connected with the harsh interrogations techniques used by the CIA on Al Qaeda detainees (see here). Earlier, the US President had made it clear previously that those CIA personnel who had relied in good faith on the legal memos written by the Office of Legal Counsel in the US Dept of Justice would not be prosecuted. On Tuesday, he reiterated that stance though using slightly different language. He stated it would not be appropriate to prosecute those ”who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House” (see the White House transcript here). This statement and what appeared to me to be an emphasis on those who acted strictly within the confines of the opinion (Obama even used his hands to draw a rectangular box as he said the words “four corners” of the opinion) suggests that Obama is open to the prosecution of some of the CIA interogators. It also also highlights the significance of the revelation that some of the interrogations went beyond the limits set out the memos (see the story in the New York times and the discussion by Kevin Jon Heller at Opinio Juris). In an earlier post on this blog, I stated that there are reasonable (though not undisputable) grounds for arguing that under international criminal law, CIA officials who conducted the interrogations in reliance on the advice of US government lawyers might be able to rely on the mistake of law/superior orders defence codified in Art. 33 of the ICC Statute.

Even more significant is Obama’s refusal to rule out prosecution of those lawyers who authored the opinions that justified the interrogation techniques. Obama stated the US Attorney General will make a decision on the investigation or prosecution of those who formulated the legal opinions. One question that arises here is: why focus on the lawyers? Much of the discussion has centered on their role. Obama’s response was to a question asking for clarification on the position of those who devised the policy on enhanced interrogation techiques. However, his answer which did not rule out prosecutions only referred to “to those who formulated those legal decisions.” But what about the others? The people who actually suggested the techniques and pushed for their use. Are they subject to investigation too? No doubt, answering that question is politically difficult given that questions will be raised as to how high up the chain one goes. And we know from recent reports that the approval of those policies was at the very highest levels of government. However, if the administration is to consider prosecutions at all, there seems to be little reason to stop with the lawyers. Indeed the Torture Convention, to which the US is party imposes an obligation on US to submit cases of torture to its prosecuting authorities.

Perhaps the reason that the focus is just on lawyers is because US criminal law recognises a mistake of law defence in circumstances where international criminal law does not. Art. 2.04 of the Model Penal Code provides that:

(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

(b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in . . . (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.

As explained in my earlier post, international criminal law does recognise such a defence. Of course, even under this provision, the key question is whether the reliance on the official statement of law is reasonable. Were there goods reasons for the key policy makers to doubt the advice they were being given? Did they induce the giving of the legal opinion just so to get cover for their acts. Lawyers should not be able to provide legal cover simply for the purpose of prosecutions. Where there are good reasons to believe that the advice being given was for that purposes and rests on doubtful legal grounds, reliance on it should not be regarded as reasonable.

For the lawyers themselves, it is sobering to think that the effect of all of this is that as a matter of US, they are the only ones open to investigation and prosecution. This of course raises the question whether lawyers may be prosecuted merely for giving advice. Something I also discussed in my earlier post. and which Kevin Jon Heller has written on. On a post at Balkinization (see here), Kevin argues the post WWII Justice Case (which I discuss in my post) does not provide a good precedent for prosecuting lawyers. However, in a post at Opinio Juris today, (see here) Kevin argues that the Ministries Case does, in fact, support such prosecutions.

I suppose one possible ray of light for the US government lawyers, is that a decision by the US to investigate them, makes it far less likely that they will be prosecuted abroad (particularly in Spain). This is because Spanish courts have held that they may not exercise universal jurisdiction where the State where the crime was committed is investigating or prosecuting the crime. This principle of subsidiarity is similar to the principle of complementarity that exists in the ICC. Spanish Prosecutors have already formally objected to the indictment of the US lawyers in Spain (see the New York Times) and an announcement that there will be an investigation in the US will likely provide a good reason for dismisal of the Spanish investigations.

3 Responses for "Obama Administration to consider prosecution of lawyers for Torture: But why just the lawyers?"

Kevin Jon Heller April 24th, 2009 at 2:13
Dapo,

I am confused about one thing. You argued in your previous post that CIA interrogators could rely on the defense of superior orders. You now argue that they could rely on a “reasonable reliance upon an official statement of law” defense (entrapment by estoppel) similar to the one provided by MPC 2.04. Although it might not matter for the interrogators, those are two very different arguments. The most obvious difference is that the defense of superior orders is much narrower, because it requires a superior-subordinate relationship. The defense of reasonable reliance does not. That has profound practical import in the context of the CIA’s torture regime: although the CIA interrogators could invoke either (if both are available), the political officials in the Bush administration who ordered the CIA interrogators to torture could only invoke the reasonable-reliance defense — they could not invoke superior orders, because they were the superiors. Indeed, is there any doubt that Cheney, Rumsfeld, et al would try to argue, if prosecuted, that they were “reasonably” relying on the OLC’s advice? That is why, as I have pointed out at OJ, it is very important to make clear that there is no reasonable-reliance defense in the Rome Statute.

My post on the defense of reasonable reliance is here: http://opiniojuris.org/2009/04/18/international-criminal-law-and-reasonable-reliance/
Dapo Akande April 24th, 2009 at 3:50
Kevin,

Perhaps I have caused the confusion as my two posts speak of available defences under two diffferent systems of law. In my earlier post, I was making the point that as a matter of international law, the CIA interrogators could rely on the superior orders defence provided for in the Rome Statute of the ICC. As you know, this defence is really a type of mistake of law defence as it is only available in circumstances where the subordinate did not know that the order was unlawful and the order was not manifestly unlawful. In my post of today, I was suggesting that the CIA interrogators and those who formulated the interrogation policies may be able to rely on the mistake of law defence provided for in US domestic law which includes reasonable reliance on official interpretations of the law.

I agree that there is no defence in the Rome Statute or in international criminal law more generally which is similar to the US mistake of law defence. I think I made that point above. The only mistake of law type defence that may be available under the ICC Statute would be superior orders. But as you say that requires a superior -subordinate relationship. So those who formulated the policies would not be able to rely on that defence in international criminal law. Of course, there is also the point I allude to in my earlier post that the Torture Convention bars reliance on superior orders though I think one can interpret that as not referring to the type of superior orders defence provided for in the Rome Statute.
Charles Gittings April 26th, 2009 at 14:54
Dapo,

The lawyers were at the heart of the consiparacy — at its root, this wasn’t a conspiracy to commit toirture per se, it was a conspiracy to subvert the law in order to commit whatever crime was deemed expedient with impunity. The instigator was Dick Cheney acting under the authorization of George Bush, and the details of planning and policies were overseen by Cheney’s counsel, David Addington.

These people committed crimes continuo0usly for over seven years, right up to the day they laft office. Cheney and Addington are cut from the same cloth as people like Heydrich and Eichman, and they were building a system… a system of pseudo-law masking the iron fist of naked executive fiat, the “fuhrer prinzip”. It was the lawyers who were charged with making the trains run on time, and those lawyers are among the worst criminals in US history.

I also want the doctors and the psychologists who participated in the torture prosecuted: together with the lawyers, they should be tried, convicted, and disbarred / banned from professional practice and teaching for LIFE.