Sorting Out the Torture Memo Issues, Part II: Deriving Appropriate Frameworks for Establishing Legal Culpability

In my first post, I began to address concerns brought to mind by W. Bradley Wendel’s excellent review for Legal Ethics (12:1) of five books on the “torture memos” generated by the U.S. Justice Department’s Office of Legal Counsel (OLC). That post lamented the tendency of the discourse on the memos’ improprieties to focus on criminal law issues while neglecting non-penal international legal norms, which were violated much more systematically (and, I would argue, with much more egregious human consequences).

There is, however, a flip side to the observation that the legal structure and political culture of the United States do not place breaches of international legal obligation altogether beyond the scope of domestic legal authority or policy consideration. In retrospectively judging the conduct of the memos’ authors – the subject of the still-withheld report of the Justice Department’s Office of Professional Responsibility, and of potential criminal investigations (in the U.S. and abroad) – one must apply standards in effect at the time and in the specific institutional setting of the activity, however much one may wish to reform those standards prospectively. And here, the case is likely to be closer than is generally imagined, and dependent on more fine-grained assessments than even most legal scholars have appreciated.

As Wendel has elsewhere acknowledged, much of the adverse reaction to the memos stems from revulsion toward very idea of a legalistic rendering of such a morally-charged subject matter. What so many observers find malodorous about the memos is that they seek at all to specify the threshold of criminal liability – especially, with respect to the penal statute implementing the Torture Convention, the line between torture and cruel, inhuman, and degrading treatment. I have attended fora of legal scholars at which the memos have been condemned as embodying the evils of “positivism.” This charge is understandable, given that even the most rigorous and accurate analysis of this distinction is inevitably a disgusting spectacle. But such a charge can only hearten the memos’ authors and their defenders, since it places them comfortably on the traditionalist side of a perennial debate, and deflects attention from the memos’ distortions of positive law.

Jeremy Waldron offers a more sophisticated repudiation of the memos’ nominal task. He suggests that identifying the boundary line was not a “legally reputable enterprise,” because doing so was a knowing invitation to interrogators to violate the non-penal international standard right up to the border of the penal standard. This is a fair characterization of the actual event, and where lawyers know that legitimate work product will be put to illegitimate purposes, conscientious refusal is, at minimum, the preferable course of action. At the very least, as my previous post asserted, lawyers should point out, as often as necessary to be sure that the point does not elude the client’s consciousness, that even a non-penal violation of international law is a serious breach of legality (notwithstanding that the Supreme Court’s language in Medellin v. Texas (2008), 128 S. Ct. 1346 at 1369, casts doubt on whether non-self-executing treaties fall within the President’s constitutional duty of faithful execution of the laws, and that U.S. courts have acknowledged Presidential authority to act in breach of customary international legal obligations). Yet it is difficult to see an argument for holding lawyers legally culpable if all they did was to provide clients with an objective and competent judgment about the boundaries of the criminal law.

Of course, the main contentions are that the memos were neither objective nor competent. Wendel has stated, in a journalistic setting, that John Yoo “gave the President of the United States the equivalent of a law student’s C-minus exam answer instead of careful, impartial legal advice.” Less colorfully, but even more damningly, Wendel has endorsed the conclusion “that the legal analysis produced by the OLC in the Bush Administration was intended not as a good-faith attempt to determine what the law requires, but to lay the groundwork for American personnel to later claim reliance on the advice of counsel if subject to prosecution for human-rights violation.”

I do not necessarily reject these conclusions (I have in the past given only a slightly more generous account), but I am concerned not to be too quick to endorse them. It is easy to assume that they are true because, in some sense, they ought to be true: the positive law of the United States should have left no space for impunity for the measures being rationalized, so that such space could only have been the invention of rogue lawyers. The realities may be less comforting.

Several of the most provocative arguments in the memos, while flawed, are not quite as far-fetched as they may seem. Even the preposterous “organ failure” standard for severity of physical pain, while indefensible in its literal terms, reflects a little-noticed reality about 18 U.S.C. §§ 2340-2340A: the standards it sets are those, not of an ordinary criminal statute, but of a universal jurisdiction statute. There is a lay sensibility that any purposive infliction of cruel, inhuman, or degrading treatment should count as torture, and indeed, there are statutory schemes within which nothing more (indeed, less) is needed to make out a crime. But if we assume arguendo that those other schemes do not apply for one or another reason, and that one is left only with 2340, the threshold for criminality will be unusually high – high enough that many of the outrageous measures will not meet it – because 2340 was primarily intended to apply to places over which the United States would not ordinarily assert jurisdiction, and to actors who would ordinarily be immune ratione materiae (as foreign state agents acting pursuant to governmental authority within their national territories). Moreover, the U.S. Torture Convention ratification instrument evinced a spirit of limitation in its attached Understanding on the meaning of “severe mental pain or suffering,” which led to a highly constrained definition of that term in 2340. And besides, the memo-writers did not turn out to be wrong in anticipating Congressional intent on the physical pain point (at least, in the post-9/11 environment), given the 2006 Military Commissions Act’s remarkable retroactive adoption of the memo’s language to limit that scheme’s definition, not only of torture, but also of cruel and inhuman treatment (and there, not even in the universal jurisdiction context).

 Where do we find a judicious framework to guide our potentially punitive assessment of the memos? The indispensable work is, yet again, that of Bradley Wendel. His 2005 Cornell Law Review article, “Legal Ethics and the Separation of Law and Morals,” brings insights from analytical jurisprudence to bear on issues of professional responsibility. Of particular interest is Wendel’s insistence on an inclusive legal positivism that requires a basis in social fact for any appeal to a morality that the law can be said to embody; the legal resolution of the case, I understand him to be saying, can turn on a moral proposition, but only when that proposition is rigorously extrapolated from a given society’s actual legal practice. A determination about the legal culpability of the memo-writers cannot ignore the presence of moral disagreement about the tactics at issue; punitive processes (unlike other processes, I would add) cannot properly operate from the premise that law is inherently incapable of acknowledging considerations in favor of harshly coercive interrogation measures. That Wendel’s theoretical sophistication has not restrained him from bold assertions reflects, perhaps, the reassuring truth that an appreciation of complexity need not entail a dampening of outrage.

Whereas Wendel’s work is primarily concerned with professional responsibility issues, Jens David Ohlin’s forthcoming Harvard International Law Journal article, “The Torture Lawyers,” focuses on criminal liability. This is an excellent piece of work on penal jurisprudence, but I am troubled by a couple of its assertions.

Ohlin believes that government lawyers can be held criminally complicit even when their advice to the principals is based on a good-faith, non-frivolous belief in the conduct’s legality: “it does not matter for the accomplice that he too thinks torture is lawful – all that matters is that he intends to assist the principal.” Ohlin cites abstract statements of complicity doctrine that, indeed, point in this direction, though case law has yet to address the central problem directly. An accomplice ordinarily must have the purpose of promoting or facilitating the offense; where the “facilitation” consists solely in communicating a good-faith, non-frivolous opinion that the conduct is lawful, the result amounts to strict penal liability for mere legal error. Perhaps there are good policy reasons for having attorneys assume the same risk as their clients, but it is hardly clear that attorneys have had fair warning of this standard. Ohlin points out that “a history of non-prosecution of lawyers (based on prosecutorial discretion) is not the same as a rule of law that lawyers are immune from the regular criminal law rules for complicity liability”; true enough, but this history does not seem irrelevant to the question, either. At any rate, the point is at least debatable.

Further, Ohlin contends (at 48) that “if the torture lawyers should have known that government agents would engage in acts of torture beyond the scope of authorization contained in the memos, they might already face liability under standard rules of accomplice liability.” That, I believe, cannot be correct. Any government lawyer in a counterinsurgent campaign knows for a fact that some substantial percentage of those he advises will commit excesses, and that inevitability cannot be allowed to taint the legal advisors. All uses of force, however legitimate, border on criminality, and all large-scale uses of force spill over that border. Ohlin’s proposition would punish the very lawyers who try to constrain that phenomenon.

The pace of scholarly writing on these topics seems to be picking up sharply. More than five years after the release of the first “torture memos,” there continues to be no dearth of fodder for controversy.