More on Waterboarding and Reasonable Reliance

by Kevin Jon Heller

Last week, I argued that the CIA waterboarders would not necessarily be entitled to the defense of entrapment by estoppel even if they relied on the Office of Legal Counsel’s insistence that waterboarding was legal. As I pointed out, the defense requires reliance to be reasonable — and a court cannot simply infer reasonableness from the fact that the erroneous advice came from an official source.

In the comments to my post, Geoffrey Corn asked an important question:

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?

Geoff is absolutely right that the CIA waterboarders’ training is relevant to the reasonableness of their reliance on the OLC. Unfortunately for the waterboarders, Bush spokeswoman Dana Perino didn’t do them any favors yesterday when she attempted to justify — pitifully — why the Army Field Manual, which prohibits waterboarding, should not be extended to CIA interrogators:

In [yesterday’s] White House press briefing, spokeswoman Dana Perino defended the veto decision by citing the age of CIA interrogators. She said that they are well-trained “professionals” with “an average age of 40.” U.S. soldiers, on the other hand, are too immature to be trusted, argued Perino. That’s why they need the Army Field Manual:

“This is done at the CIA, and it is done by professionals who are given hundreds of hours of training, who are — I think General Hayden said an average age of 40; who are being asked to do very hard work in order to protect Americans.

“The Army Field Manual is a perfectly appropriate document that is important for young GIs, some so young that they’re not even able to legally get a drink in the states where they’re from.”

It is difficult to believe that the “hundreds of hours of training” the mature CIA waterboarders received didn’t include something about the illegality of waterboarding. After all, as Marty Lederman has pointed out, waterboarding — even the fun kind the CIA practices, which is supposedly nowhere near as bad as that practiced during the Spanish Inquisition — is illegal under a variety of federal statutes:

Even if waterboarding were not “torture,” as defined in the law, it would still violate at least three other legal prohibitions, even when conducted by the CIA (which is subject to fewer laws than the military). For example, waterboarding violates:

(i) The federal assault statute, 18 U.S.C. 113, which provides that simple assaults, or assaults by striking or beating, are misdemeanors if they occur “within the special maritime and territorial jurisdiction of the United States” (which includes “the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership”).

(ii) Common Article 3’s prohibition on all “cruel treatment and torture.”


(iii) The McCain Amendment’s prohibition on cruel, inhuman and degrading treatment, which prohibits all conduct that would “shock the conscience” assuming the Due Process Clause applied. According to Justice Kennedy (almost certainly the dispositive vote as of now), this includes at the very least “torture or its close equivalents.”

But one need not resort to these other legal constraints in this case, because waterboarding obviously is torture prohibited by the federal torture statute, 18 USC 2340-2340A. OLC apparently advised otherwise — but how could that be? After all, waterboarding is perhaps the classic, paradigmatic technique of acknowledge torture regimes throughout history, from the Spanish Inquisition to the Khmer Rouge. And as Human Rights Watch explains, the U.S. itself “has long considered waterboarding to be torture and a war crime.”:

As early as 1901, a U.S. court martial sentenced Major Edwin Glenn to 10 years of hard labor for subjecting a suspected insurgent in the Philippines to the ‘water cure.’ After World War II, U.S. military commissions successfully prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding. A U.S. army officer was court-martialed in February 1968 for helping to waterboard a prisoner in Vietnam.

And plainly, if our enemies used these techniques on U.S. military personnel, no one would, in public debate, deny that such a technique is a form of torture. It is hard to imagine how OLC could possibly have concluded otherwise.

So, to recap: (1) the CIA interrogators were mature and well-trained in interrogation; (2) waterboarding is clearly illegal under a variety of federal statutes; and (3) the U.S. has considered waterboarding to be torture and a war crime for more than a century.

Given all that, do we really believe that the CIA waterboarders reasonably relied on the OLC’s insistence that waterboarding was legal?

7 Responses

  1. US v Lee, 5th curt of appeals, 1984

  2. It is hard to dispute that Perino did not do the objects of this critique any favors. I still wonder, however, how much of what was said in the briefing is hyperbole? I am not expert on the CIA. I did, however, have some decent exposure to the intelligence community early in my military career as the result of spending five years as an Army intelligence officer (which included attending both the intelligence basic and advanced courses and working with CIA personnel in Panama). Based on this experience, and other information I have received over the years, I still think that it is possible Perino is conflating strategic de-briefers with interrogators.

    I have no doubt that back in 2001 the CIA had a cadre of very experienced debriefers. However, I still wonder how many of them were highly trained interrogators? Of course, the difference is that a debriefer is working with a subject who has already chosen to cooperate; whereas an interrogator may confront a subject with very different intentions. It is certainly possible to transform a debriefer into an interrogator overnight, but that does not mean that the expertise is transformed with the function.

    So, I still think determining what constitutes a “reasonable” CIA interrogator at the time these tactics were used is relevant to the application of the potential mistake of law defense. Having said that, it is hard to disagree with the basic proposition that even a well trained interrogator OR debriefer would have recognized the problematic nature of these authorized tactics.

    But nonetheless, this discussion is, after all, about application of a potential defense. I assume the thrust of the argument is that this is a potential but ultimately ineffective theory of defense for a charge directed towards the CIA personnel who executed these orders. But in the end, isn’t that why the judgment on what was “reasonable” in application of the defense is a question of fact for the finder of fact?

    What I can agree on is that it would be a tough defense to prevail upon, even if the interrogation experience was limited, for the simple reason that it is hard to imagine anyone accepting at face value that such treatment was lawful. But we really don’t know some critical facts that would be relevant to the defense, to include not only the extent and nature of the training, but also what efforts, if any, these personnel made to question and/or confirm the legality of the conduct they were ordered to engage in?

    I think all of this – the nature of experience and training, the source of the legal opinions, whether those opinions were questioned or challenged in any way, is relevant to the factual determination of whether reliance on the statement of legality was “reasonable” and therefore provides a valid defense. If the suggestion is, however, that under these circumstances there would not be a sufficient basis to submit this defense to a jury, then that is something I do not agree with. Whether we agree or not, it is indisputable that there were lawyers who reached radically differing conclusions on the legality of these tactics. I agree with Kevin that those who concluded this conduct was lawful were wrong, and ignored decades of legal and practical precedent. But if the lawyers could not agree on the legal rules, then it seems to be it would have at least been possible that reliance on those opinions was reasonable – at least possible enough to satisfy the burden required to raise the defense and allow the finder of fact to make the ultimate reasonableness judgment.

  3. Geoff’s comments are, as always, well taken. To be clear, I do not believe that the CIA waterboarders should be denied the entrapment by estoppel defense as a matter of law. I am simply taking issue with the claim that it was necessarily reasonable for the CIA waterboarders to rely on the OLC’s advice, simply because it came from the OLC. Both positions are equally incorrect, for the reason Geoff identifies: the reasonableness of reliance is a question for the jury.

  4. Вы разве не знали что порой изготовители публикуют неоднозначные параметры. Понять каких видов распространена запорная арматура поможет обзорный журнал. Позвольте себе выбирать.

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  5. The McCain amendment was passed after the events in question, which occurred in 2002 and 2003, and does not appear to be retroactive. Why even bring it up in the context of the discussion?

    I’m still pretty confident any jury would find reliance on the OLC’s opinion to still be “reasonable,” unless it is revealed our interrogators are lawyers themselves.

  6. Are we sure that even if waterboarding generally, as practiced by other regimes, might be torture, ours also is? I see a major difference between using a cloth (in which case the person gets water in their mouth, which is bad) and using cellophane (in which case they don’t). If, as DoD seems to be claiming, their method of waterboarding does not cause any actual physical harm, it seems that one could reasonably argue it is not torture.

    Perhaps it’s just me, but it seems a bit of a stretch to argue that the US Justice department was not only wrong here, but that it took a view that no reasonable knowledgeable person could have.

  7. I can see the CIA’s slogan now: “Only as bad as the Khmer Rouge!”

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