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.