Why I Disagree with Marty Lederman About Prosecuting Waterboarders

by Kevin Jon Heller

I think it’s safe to say that Marty Lederman has been one of the blogosphere’s most passionate, articulate, and persuasive critics of the Office of Legal Counsel’s authorization of waterboarding. So I was very surprised to read his latest post on the subject, in which he argues not only that the CIA officers who actually conducted the waterboarding would not be prosecuted for doing so by this or any other administration, but also — and more radically — that they should not be prosecuted. The former is inescapable. But I take issue with the latter.

The motivation for Lederman’s post is the angry reaction in the blogosphere to Attorney General Mukasey’s open acknowledgment on Thursday that the DOJ has no intention of prosecuting waterboarders. (And recall that the CIA has now acknowledged that it has waterboarded at least three “high value” al-Qaida detainees.) Here is a snippet of Mukasey’s testimony before the House Judiciary Committee:

CONYERS: Well, are you ready to start a criminal investigation into whether this confirmed use of waterboarding by United States agents was illegal?

MUKASEY: That’s a direct question, and I will give a direct answer. No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.

For me to use the occasion of the disclosure that that technique was once part of the CIA program — an authorized part of the CIA program, would be for me to tell anybody who relied, justifiably, on a Justice Department opinion that not only may they no longer rely on that Justice Department opinion, but that they will now be subject to criminal investigation for having done so.

That would put in question not only that opinion, but also any other opinion from the Justice Department. Essentially, it would tell people: “You rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigation when, as and if the tenure of the person who wrote the position changes or, indeed, the political winds change.” And that’s not something that I think would be appropriate and it’s not something I will do.

Although appalled by the OLC’s authorization of waterboarding, Lederman agrees with Mukasey that it would not be appropriate to prosecute the waterboarders. As he says at the end of his post, “prosecuting the intelligence operatives who relied on OLC’s bad advice is not the answer.”

Lederman’s argument, however, is not convincing. He begins by pointing out that Mukasey’s testimony does not exactly come as a surprise, because the DOJ continues to believe that waterboarding was legal when the CIA used it. He then turns to what he sees — correctly, I think — as the real issue:

The more interesting question — and the one that I think underlies the outrage over Mukasey’s remarks — would arise if and when the Department changed its legal view, and came to conclude that the conduct was in fact unlawful, i.e., that its previous advice was wrong. In that case, could it — should it? — go back and prosecute those who had relied upon that advice?

Lederman’s first response is that even this hypothetical DOJ would likely refuse to prosecute the waterboarders, because “[t]he practical ramifications of such a prosecution for future intelligence activities and the functioning of OLC would simply be too substantial.” True enough — but as he acknowledges, that doesn’t answer the legal question, which is whether the hypothetical DOJ could “go back and prosecute those who had relied upon that advice.” Regarding that issue, he first says the following:

More importantly, even in the unlikely scenario that DOJ would one day consider such a prosecution, I think that it would be of dubious constitutionality in almost all cases. The doctrine on this is a bit complicated, but I think it is fair to say that the four leading Supreme Court cases — Raley v. Ohio; Cox v. Louisiana; U.S. v. PICCO; and Marks v. United States — stand for the broad proposition that criminal culpability may not be imposed for conduct undertaken in reasonable reliance upon the representation of government officials that the conduct was lawful.

This statement, however, is a red herring. As far as I know, none of the outraged bloggers have argued that the waterboarders should be prosecuted even if they reasonably relied on the OLC’s advice. On the contrary, as Lederman’s quote from hilzoy indicates, their point is that relying on the OLC’s advice was not reasonable. And Lederman himself admits that it is not unconstitutional to prosecute someone who unreasonably relies on government advice.

Lederman implicitly recognizes that the constitutional argument is not relevant here, because he then says that “of course, the difficult question in any case is whether the reliance was reasonable.” Unfortunately, he never gives an unequivocal answer to that question. On the one hand, he admits that he believes that waterboarding is “patently illegal” — i.e., so unmistakably illegal that no reasonable person could believe that it was legal. Yet he also seems to believe that the waterboarders could still have reasonably relied on the various government opinions to the contrary:

If the OLC memos on torture, and the subsequent CIA General Counsel directives, were so patently wrong that any reasonable CIA operative or contractor should have been aware of that fact, then the reliance would not have been reasonable. However, especially given (i) the official and historical role of OLC in providing authoritative legal advice within the Executive branch; and (ii) the continued insistence of the President and subsequent Attorneys General that the advice was not mistaken, I think it is almost certainly the case that no court would find the reliance by CIA operatives and contractors on OLC’s advice to have been so unreasonable as to justify prosecution.

Two comments. First, Lederman’s argument conflates two different issues: whether a court would find the reliance reasonable, and whether a court should find the reliance reasonable. The latter obviously does not follow from the former.

Second, and more important, I think Lederman’s argument misunderstands the nature of “entrapment by estoppel.” Section 2.04 of the Model Penal Code provides a typical formulation of the defense:

[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… 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.

The MPC formulation makes clear that the reasonableness of reliance cannot simply be inferred from the fact that the erroneous official statement was made by the “public officer or body” charged with interpreting the relevant law. Any other interpretation of the defense — most relevantly, that relying on an official statement made by the appropriate public officer or body is per se reasonable — renders the word “reasonable” completely superfluous. Reliance itself would be enough to invoke the defense.

Differently put, the reasonableness requirement in entrapment by estoppel only makes sense if we leave open the possibility — however slight — that reliance on official advice can be unreasonable no matter how authoritative the public officer or body that issues it. Lederman, however, seems to foreclose that possibility completely when he writes that no court would find the waterboarders’ reliance on the OLC unreasonable “given (i) the official and historical role of OLC in providing authoritative legal advice within the Executive branch; and (ii) the continued insistence of the President and subsequent Attorneys General that the advice was not mistaken.”

We are thus back to the original question: would a reasonable person — a “reasonable CIA interrogator”? — have known that waterboarding was illegal despite the advice of the OLC and the President’s assurances? I suppose reasonable people could disagree on that question, but Lederman himself seems confident that the answer is “yes.” After all, as pointed out above, he believes not only that waterboarding is illegal, but that it is patently illegal. It is thus difficult to understand why he nevertheless insists that “prosecuting the intelligence operatives who relied on OLC’s bad advice is not the answer.” If their reliance was unreasonable, why not?

This tension, it is worth noting, undermines other aspects of Lederman’s argument. Later in the post, after opining that it may be appropriate to prosecute the authors of the OLC’s erroneous opinions, he insists that prosecuting the waterboarders themselves “would be targeting the wrong government actors,” because we “want CIA officers to be able to rely on OLC advice.” No — we want CIA officers to rely on reasonable OLC advice, and we do not want CIA officers to assume that any advice they receive from the OLC or from the President is necessarily legal. In other words, we want CIA officers to exercise their own independent legal judgment.

To be sure, CIA officers no more carry around a library of international law than soldiers. Yet a soldier who commits a war crime can only invoke the defense of superior orders when, in the words of the Army Field Manual, “he did not know and could not reasonably have been expected to know that the act ordered was unlawful.” We expect a soldier, in other words, to have at least a basic understanding of the laws of war. Why should we expect any less of a CIA officer?

Again, there is no question that we should not lightly dismiss an OCL opinion that certain conduct is legal. We cannot expect perfect legal judgment from the CIA officers who engaged in waterboarding. But we also cannot completely collapse the distinction between reliance and reasonable reliance, as — again — Lederman seems to do when he says that no court would ever find an act unreasonable that had been approved by the OLC and the President.

A final thought: this discussion of the entrapment by estoppel defense highlights the importance of international criminal law. ICL does not recognize the defense, and for good reason: an act that qualifies as a war crime under international law is a war crime even if the perpetrator’s state insists that it is not. The alternative, of course, is unthinkable — if the Nuremberg Military Tribunals could not have punished war crimes that Hitler and the Reich Minister of Justice assured their subordinates were legal, convictions would have been few and far between.

The CIA waterboarders, of course, will never be called to account before an international tribunal. But that doesn’t mean they shouldn’t be.


18 Responses

  1. Professor Heller,

    If I could get you to put your former public defender hat back on for a minute, don’t you think these are awful fine distinctions to be drawing in the context of criminal liability, i.e. do you have a rule of leniety problem?

  2. NSD,

    I don’t see the rule of lenity problem. The rule says that when a criminal statute is ambiguous, the court should resolve the ambiguity in favor of the defendant. As Marty has pointed out here, there is nothing “ambiguous” about the federal torture statute; the OLC simply — and clearly intentionally — twisted its language to justify waterboarding.

    Full admission: I was a high-priced private defense attorney, not a public defender…

  3. Professor Heller, I agree with your analysis. I hate to resort to ad hominem because Professor Lederman is on the side of the angels and writes incredibly thoughtfully about these issues (and is a favorite blogger of mine), but he has been very careful over the years to protect his former employer, the OLC, as an institution. I hope he takes some time to reply to the points raised in your post because I think the legal community would benefit from that discussion.

    One point I would raise, however, is on the “should we prosecute” question (as opposed to the “can we prosecute” question which you discuss). Aside from the fact that I think such an action is what justice requires, I wonder how much legal scholars give thought to how domestic accountability enhances the U.S. foreign policy position. One of the main critiques of the U.S.’ foreign policy abroad is how it sometimes hypocritically applies its own values. Certainly, I think most of us can admit that torture, extraordinary rendition, and indefinite detention have been black marks on U.S. foreign policy. Wouldn’t a couple of high-profile prosecutions of those who authored the policy (or principally enacted it), by the next administration, be a way of cleansing that stain?

    And if “lawfare” is so effective at constraining U.S. actions as a superpower by others, shouldn’t the U.S. be giving thought to how the U.S. might be able to use “lawfare” effectively to marshal world opinion against its rivals? And wouldn’t domestic accountability be an integral part of that?

  4. Professor Heller,

    I agree with you that you probably don’t have a strict rule of lenity problem, but I do think the general norm about not stretching existing legal rules and structures to create criminal liability cuts against prosecuting someone who relied on a legal opinion from OLC.


  6. There are many federal criminal rules, Uniform Code of Military Justice rules, and possibly state law rules that could be applied to the actions being described. Their application would be no more exotic with the CIA officers then they would be with the crack dealer on a street corner in the War on Drugs. Their application would certainly not be as exotic as the bases for the criminal prosecution of Padilla.

    Like every law professor I guess I have to disclose that I have an article on this topic coming out. It is entitled Refluat Stercus: A Citizen’s View of Criminal Prosecution in U.S. domestic courts of high-level U.S. civilian authority and military generals for torture and cruel, inhuman or degrading treatment (draft not to be cited) January 30, 2008 draft. 23:2 St. John’s Journal of Legal Commentary (2008) where I attempted to find Uniform Code of Military Justice, Federal and State criminal law bases for criminal prosecution of high-level civilian and military generals for torture etc. I have a draft on my faculty website at Refluat Stercus.

    Marty is wrong. Kevin is more right.

    Also, there are some of us working on an American Society of International Law draft resolution on some of these matters to follow up on the Centennial Resolution. Prosecutions are just a question of power nothing else. (See Nifong and the Duke rape case as an example of what many consider the outer limits of prosecutoral discretion. We are way inside that envelope here).

    Here is the current draft.


    Under the procedure set forth in Article IX of the ASIL Constitution, the following resolution was adopted at the Annual General Meeting of the American Society of International Law on __________.

    A. The American Society of International Law reminds the United States of America of its Centennial Resolution on the laws of war and detainee treatment adopted on March 30, 2006, to wit:

    1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum).

    2. Conduct of armed conflict and occupation is governed by the Geneva Conventions of August 12, 1949, and other international law (jus in bello).

    3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogation is permitted.

    4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.

    5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.

    6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts of their subordinates.

    7. All states should maintain security and liberty in a manner consistent with their international law obligations.

    B. Waterboarding is torture and has been for over 100 years in U.S. domestic law and in international law.

    C. Under the rule of law, the American Society of International Law calls upon the Attorney General of the United States to criminally investigate and prosecute any instances of torture and cruel inhuman and degrading treatment under appropriate U.S. domestic and international law.”

  7. NSD,

    With respect, aren’t you the one stretching the legal rule — or perhaps more accurately, tightening it? The defense of entrapment by estoppel is very clear: you can’t simply infer reasonableness from the fact that the official (mis)statement came from the appropriate public office. Yet you want to create an exception from that rule for statements by the OLC. Why? Why should we permit individuals to rely uncritically on OLC statements, no matter how patently incorrect those statements are?

    Non liquet,

    Agreed. It’s difficult to take seriously anything the US says about other legal systems (e.g., Iraq’s) when the Bush administration strenuously avoids prosecuting its own officials and soldier for anything of consequence. It also undermines what is, I think, one of the few legitimate US concerns about the ICC — namely, that although the Rome Statute is based on the principle of complementarity, the Court has the final say over whether a state is “willing” to prosecute its own nationals. Given how evidently unwilling the US is to do so, the US position seems — wrongly — like little more than a demand for the right to act (or not act) with impunity.

  8. Like every law professor I guess I have to disclose that I have an article on this topic coming out. It is entitled Refluat Stercus: A Citizen’s View of Criminal Prosecution in U.S. domestic courts of high-level U.S. civilian authority and military generals for torture and cruel, inhuman or degrading treatment (draft not to be cited) January 30, 2008 draft. 23:2 St. John’s Journal of Legal Commentary (2008) where I attempted to find Uniform Code of Military Justice, Federal and State criminal law bases for criminal prosecution of high-level civilian and military generals for torture etc. I have a draft on my faculty website at Refluat Stercus.

    iş ilanları

    emlak ilanları

  9. I’m just not convinced that reasonable layman would find waterboarding patently illegal.

    We’re basically asking them to interpret the legal meaning of torture to reach the conclusion that the OLC opinion was invalid.

    If it’s not a “laundry list” offense, banned by name, I just don’t see it as obvious even someone with no legal training should recognize the OLC opinion as invalid.

    We don’t expect our soldiers to make calls on the battlefield as to whether a defoliant is a chemical weapon, why would waterboarding and torture be any different?

  10. M,

    Just as we use a reasonable soldier standard (adjusted for rank and experience) instead of a reasonable layperson standard in the context of the defense of superior orders, I think we would use a reasonable CIA interrogator standard instead of a reasonable layperson standard in the context of reasonable reliance on an official statement. And I think it is difficult to argue that a trained CIA interrogator could be — or, more relevantly, could reasonably be — ignorant of the historical criminalization of waterboarding, especially as the US has itself prosecuted waterboarders.

    Do you really believe that concluding that waterboarding is torture is as technical and difficult as concluding that a particular defoliant is a chemical weapon? With respect, I don’t buy the analogy. It seems to me that the only people who find it difficult to conclude that waterboarding is torture are those who have ordered it and recommended it; interrogators themselves seem to have no such inhibitions.

  11. To quote the Washington Post:

    On Jan. 21, 1968, The Washington Post published a front-page photograph of a U.S. soldier supervising the questioning of a captured North Vietnamese soldier who is being held down as water was poured on his face while his nose and mouth were covered by a cloth. The picture, taken four days earlier near Da Nang, had a caption that said the technique induced “a flooding sense of suffocation and drowning, meant to make him talk.”

    The article said the practice was “fairly common” in part because “those who practice it say it combines the advantages of being unpleasant enough to make people talk while still not causing permanent injury.”

    Doesn’t this seem to support my point, in that the average soldier/interrogator does not recognize it as “obviously” torture?

    As opposed to a relatively obscure conviction of an enemy in WW2? If he was to be aware of any history, the common practice would probably be more likely.

  12. I’m curious as to your opinion of liability that CIA torturers, or government lawyers, or U.S. political officers, might face abroad, either before the International Criminal Court or before courts of countries that claim universal jurisdiction in war crime cases. I realize that the U.S. does not recognize the ICC, but then, it’s standard for war criminals to protest that the tribunal they face is illegitimate. Is there anything, other than naked fear of U.S. political retribution, to prevent the arrest and trial abroad of persons who participated in these crimes?

    Conversely, in the future, if a U.S. administration wanted to prosecute people in connection with acts of torture under the Bush administration but felt it could not because of the legal considerations you discuss in this post, would extradition to the Hague be an option?

  13. Steve,

    As to your first question, the answer is no. Torture is a grave breach of the Geneva Conventions, so all states have an affirmative obligation to provide universal jurisdiction over torture and to either prosecute a torturer in their custody or extradite him to a state that will. The Convention Against Torture contains a similar obligation.

    As to your second question, the answer is yes. Article 11 of the Rome Statute generally provides only for prospective jurisdiction over crimes committed by nationals of a new member of the ICC, but it also says that a State can waive that limitation by filing a declaration to that effect pursuant to Article 12(3). So as long as the act itself took place after 1 July 2002 — the beginning of the Court’s temporal jurisdiction — a (very hypothetical) US administration could turn the torturers over to the Hague.

  14. Matthew,

    From ABC:

    Water boarding was designated as illegal by U.S. generals in Vietnam 40 years ago. A photograph that appeared in The Washington Post of a U.S. soldier involved in water boarding a North Vietnamese prisoner in 1968 led to that soldier’s severe punishment.

    “The soldier who participated in water torture in January 1968 was court-martialed within one month after the photos appeared in The Washington Post, and he was drummed out of the Army,” recounted Darius Rejali, a political science professor at Reed College.

    By the way, do you really consider the convictions at the Tokyo Tribunal to be “relatively obscure”?

  15. Either there must be a new Att’y Gen. (which will happen in 2009) or there must be a special prosecutor (which is not likely in 2008 either) — or there can be prosecution of various individuals abroad.

    I note that in United States v. Von Leeb, et al., during the Subsequent Nuremberg Proceedings, the U.S, military commission ruled that International Law “must be superior to and where it conflicts with, takes precedence over National Law or directives issued by any national governmental authority. The directive to violate International Criminal … Law is therefore void and can afford no protection to one who violates such law in reliance on such a directive.” As documented in my book, Beyond the Law: The Bush Administration’s Unlawful Responses In the “War” on Terror (Cambridge University Press 2007), several DOJ memos manifestly facilitated violations of international criminal law. For the present Att’y Gen. to rely on them today could amount to aiding and abetting or misprison of felonies (“high crimes”) if the criminal mens rea can be shown (e.g., if he is aware that his conduct assists or facilitates the “common, unifying” plan to use “coercive interrogation” and/or secret detention).

  16. By the way, do you really consider the convictions at the Tokyo Tribunal to be “relatively obscure”?


    He was among hundreds of minor (B &C) class war criminals tried in those years. Had this particular subject not come up, it’s unlikely anyone but the most obscure of scholars would have any idea who he was, and probably not by name, in any case.

    From the synopsis offered here we can’t even be sure they found waterboarding to be torture at the trial, as he had a long list of behaviors listed. Given the protections of Prisoners of War, wouldn’t it be possible to find the waterboarding was not torture, but still coercive?

    “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.”

  17. One thing I’d like to point out to those questioning whether it was reasonable to rely on the opinion of the OLC: there’s a huge difference between reading a dry description of a technique and actually performing it.

    Once you’ve kept a person standing for 40 hours, you have no questions that “long time standing” is torture.

    Waterboarding goes beyond this, because one of the well established (and explicitly prohibited) forms of torture is the mock execution, in which the victim is placed in imminent fear of death. Waterboarding certainly qualifies.

    In either of these cases, it would be unreasonable to rely on an outside opinion that they are not torture when you are the one causing another person to undergo that suffering, and able to see the results.

    I think other “enhanced interrogation techniques” fall into similar categories; e.g., beating a victim with a rubber hose is torture, so why would a belly slap be different? Both are intended to cause pain but no lasting injury….

    I think most people debating this issue keep falling into what I’ll call the “dry description fallacy”… they keep imagining that these actions might be reasonable from the descriptions they read, because they’re not really seeing them play out.

  18. One factor in this analysis I think is unfortunately overlooked is the question of whether the CIA had a pool of experienced interrogators during this critical period of time. How do we use the “reasonable CIA interrogator” standard without full knowledge of the extent of interrogation training provided to these personnel. The CIA has traditionally not been in the interrogation business – they have been in the debriefing business. There is a world of difference between these two functions. If it turned out that the CIA personnel engaging in this conduct were not, as I think is assumed, well trained interrogators, but were instead relative novices in that function, how would it impact the “patently unlawful” analysis?

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