Leon Panetta, US President Obama’s nominee to be Director of the CIA, stated in his confirmation hearings last Thursday that he believes waterboarding to be torture (see here). This is the third admission in recent weeks by senior US officials (or prospective officials) that the US has tortured some of the persons detained now detained in Guantanamo Bay. Similar statements were made by Susan Crawford, Convening Authority for the Military Commisions (see here) and by the new Attorney General Eric Holder (see this Youtube clip). These statements have given rise to intense discussions about whether the US is under an obligation to prosecute those CIA officials who participated in the interrogations and higher level administration officials who approved them. It is therefore of particular interest that Leon Panetta stated categorically that the US will not prosecute those CIA officials who had been involved in harsh interrogations (see here).
Kevin Jon Heller and Philippe Sands have an excellent exchange at Opinio Juris (see here and here) pointing out that under Art. 7(1) of the Torture Convention, the US’ obligation is not quite to prosecute but to submit the cases to its competent authorities for the purposes of prosecution. Those authorities may then apply the standards they would ordinarily apply in cases of ordinary crimes in order to decide whether to initiate prosecution. So, the prosecuting authority may take into account considerations like the availability of evidence, the likelihood of success and, in a system with prosecutorial discretion, issues of policy. Of course, it should be pointed out that a failure by the US to prosecute persons involved in waterboarding or other forms of torture may still be subject to prosecution under the universal jurisdiction scheme of the Torture Convention.
In this post, I intend to raise some legal issues that arise with regard to the liability of US officials for torture and consider whether those legal issues might justify a decision not to prosecute particular officials.
Prosecution of CIA Officials: The first question is whether there may be legal (as opposed to policy) considerations justifying the refusal to prosecute the CIA officials who carried out the torture. Panetta is quoted as saying that:
“It was my opinion we just can’t operate if people feel [that] even if they are following the legal opinions of the Justice Department [they could be in danger of prosecution]“
This could be taken as suggesting a mistake of law defence for persons who relied on the now infamous legal opinions from the US Department of Justice regarding the definition of torture. So the argument is that since these people had it on “good authority” that their actions were legal it would be wrong to prosecute them. Jens Ohlin’s entry on “Mistake of Law in the recently published Oxford Companion to International Criminal Justice (OUP, 2009) says that “In most American jurisdictions, mistakes of law based on official legal advice have to be ‘reasonable’ for the defence to work – if it works at all.” It may be considered reasonable for low level officials to rely on legal advice which comes from the highest possible authority in the government. However, the problem with such an argument is that international criminal law does not, as a general matter, recognise a mistake of law defence, unless the defence negates a mental element of the offence. Moreover, it does not recognise such a defence even if the person concerned relied on legal advice. This may be justified by the fact that international criminal law prohibits particularly heinous acts and persons who commit these acts are morally culpable, even if they consider their acts to be lawful.
However, international law may well recognise one type of mistake of law defence. This is the defence of superior orders. There is a longstanding debate about whether customary international law recognises this defence. The Statutes of the ICTR, ICTY and the Special Court for Sierra Leone provide that superior orders does not relieve of criminal responsibility but may be considered in mitagion of punishment. Nevertheless, this defence is included in Art. 33 of the Statute of the ICC. The defence is recognised only to the extent that the person carrying out the order did not know that the order was unlawful and to the extent that order was not manifestly unlawful. Thus the defence is only available to the extent that there is an order from a superior AND the subordinate is resonably mistaken as to the legality of that order. Hence, the qualification of this defence as provided in the ICC Statute as a type of mistake of law defence (though one not available with regard to genocide and crimes against humanity). There has been considerable debate as to whether it is the ICC provision or the Nuremberg/ICTY/ICTR which represents customary international law. I think there are good arguments for saying it is the former: it represented the law prior to Nuremberg and, under the influence of the ICC statute, is already dominating thinking on the issue. But even if the defence of superior orders is established in customary international law, Art. 2(3) of the Torture Convention provides that “An order from a superior officer or a public authority may not be invoked as a justification of torture. ” Does this provision mean that superior orders is never available with respect to torture. The answer must be no. For one thing, it should be remembered that torture may be prosecuted as a war crime under the ICC statute. Art. 33 of the ICC Statute excludes superior orders as a defence with respect to orders to commit genocide and crimes against humanity but there is nothing to suggest its inapplicability to torture as a war crime. Moreover, Art. 2(3) of the Torture Convention deals solely with the fact that the subordinate has received an order. It does not specifically cover the situations dealt with by Art. 33 of the ICC Statute and customary international law, where the subordinate receives an order which is not manifestly unlawful and the subordinate is subjectively mistaken as to the order’s legality. In such a situation, its not just the order that is invoked as the justification, the order is merely a part of that justification. So, one could read Art. 2(3) Torture Convention and Art 33, ICC Statute consistently by interpreting the former to mean that the mere fact that the accused has received a superior order may not be invoked as a justification. In conclusion, there are reasonable (though not undisputable) grounds for arguing that CIA officials who conducted the interrogations might be able to rely on the category of mistake of law defence which is superior orders.
Prosecution of Higher Level Officials: Reliance on mistake of law and superior orders raises a couple of further issues. To the extent that superior orders is relied on and allowed, it has the effect of immediately establishing the responsibility of higher level officials who gave the orders. So, the Obama Administration is in an escapable bind. If it relies on mistake of law in order to excuse actions of its officials, it is relying on a defence generally unavailable in international criminal law (and which will therefore not prevent foreign prosecutions). To the extent that the US relies on that aspect of mistake of law which incorporates superior orders, as a way of excusing those who carried out the order, the US is admitting the responsibility of those who formulated and gave the orders. Those higher level officials who gave the order or indeed those who formulated the proposals that led to the order will not be able to rely, under international criminal law, on any mistake of law or superior orders defence.
What about the Lawyers? Then there are the US lawyers who gave the advice that is being relied to justify the acts of the CIA officials. Are they liable to prosecution? The Justice Trials (US v. Alstoetter & others) (for extracts, see here), a post WWII prosecution by the US Military Tribunal sitting in Nuremberg conclusively establishes that lawyers may be responsible for war crimes and crimes against humanity with respect to acts committed as lawyers. According to the tribunal:
“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, illegal even under German law, in furtherance of the declared national purpose. Others, as judges, distorted and then applied the laws and decrees against Poles and Jews as such in disregard of every principle of judicial behavior. 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. The person who persuades another to commit murder, the person who furnishes the lethal weapon for the purpose of its commission, and the person who pulls the trigger are all principals or accessories to the crime.”
The key point that will need to be established with regard to the US lawyers is their precise mode of individual responsibility. In the Justice Trials, some of the acts of the relevant lawyers themselves constituted the crime: the formulation and enforcement of discriminatory laws; denial of fair trial rights, handing convicts (not sentenced to death) for execution. Also since the defendants were charged with crimes against humanity, the individual acts were seen as part of the general pattern of persecution and extermination. The position is perhaps different with regard to the US lawyers. Their act of interpreting the law is not the act of torture. The question is whether that act can be linked to the torture through one of the recognised modes of responsibility. One possibility is to argue, (as Milan Markovic – not to be confused with our very own Marko Milanovic! – has argued in his article “Can Lawyers be War Criminals?” ) that the acts of the US lawyers may make them aiders and abetters because the lawyers materially contributed to the commission of the crime (torture). Or they may be held responsible for complicity in torture under Art. 4(1) of the Torture Convention. Another alternative would be reliance on the notion of joint criminal enterprise. Here the argument would be that the lawyers shared in a common criminal purpose and contributed to the furtherance of that purpose, with intent that torture be committed. There appears to be no reason why lawyers should be immunised from criminal liability under these theories just because they are lawyers. The only question is whether a lawyer who acts in good faith interpreting the law and who acts reasonably in such interpretation should be held liable for getting the law wrong. From one point of view, to provide a defence to lawyers in such circumstances is to say that lawyers are entitled to benefit from a mistake of law defence when others are not. It would be strange for those who have expertise in law to be able to rely on getting it wrong, while those without such expertise are held liable. On the other hand, a lawyer who does his best in interpreting the scope of international law rules ought not to be punished for merely doing that. But there is the rub of the matter, is the lawyer merely interpreting the rules or is he or she instead seeking to facilitate a system of abuse or egregious conduct. In such a case, lawyers ought to have no immunity.