John Yoo and the Justice Case — Post at Balkinization

by Kevin Jon Heller

Marty Lederman has kindly published a long post I have written on what — if anything — the Justice Case has to say about the criminal responsibility of government lawyers like Yoo. Here is the introduction:

Scholars who argue that John Yoo’s authorship of the infamous torture memos makes him complicit in various war crimes -– torture, illegal detention, etc. -– almost invariably cite the WWII-era case United States v. Alstoetter, commonly referred to as the Justice Case, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Here, for example, is what Scott Horton, an excellent scholar and one of our finest bloggers, has to say:

Can a lawyer at the Department of Justice be criminally liable for giving opinions that lead to the torture and abuse of prisoners in war time? The answer is: Yes. The precedent is United States v. Altstoetter. The sentence handed down was ten years, less time served awaiting trial. It’s a case for John Yoo to study in the period leading up to his inevitable prosecution.

I do not know enough about Yoo’s actions to venture a general opinion about their possible criminality. I do know something, however, about the Justice Case -– I am currently writing a book for Oxford University Press on the jurisprudence of that trial and the eleven other trials held in the American zone of occupation between 1946 and 1949, which are collectively known as the Nuremberg Military Tribunals (NMT). So I thought readers might be interested in a detailed look at what the Justice Case says -– or doesn’t say -– about the culpability of government lawyers who advise their clients that unlawful conduct is, in fact, lawful. The bottom line, in my view, is that as reprehensible as Yoo’s opinions were –- and they were indeed reprehensible -– the case provides far less support for prosecuting him than most scholars assume.

I hope readers will check out the entire post, along with Marty’s excellent introduction, in which he discusses his general views on the issue. I completely agree with Marty and hope that readers will not misunderstand my position. I am not saying that nothing John Yoo and the other government lawyers did could ever be considered criminal. I am not saying that the Justice Case rules out the possibility of a future prosecution. Indeed, I can imagine — counterfactually — a situation in which the NMT would have convicted a government lawyer of complicity for giving his political superiors advice he knew full well violated international law. My position is simply that the Justice Case did not involve such a situation and that, as a result, the judgment has almost no precedential value for a future prosecution of Yoo and/or others.

10 Responses

  1. As I posted over at Balkinization, I would suggest you read Jordan Paust, Beyond the Law, or invite him to post here from the University of Houston as he would significantly differ with Kevin and Marty’s analysis.

    I would also say that the point being made here does not go far enough.

    “The Tribunal rejected that argument, concluding that the letter was not, in fact, simply a legal opinion:

    This Tribunal does not construe that letter as a legal opinion but as an expression of Party policy, submitted through the Party Chancellery to the Ministry of Justice… it can hardly be construed as a legal opinion as to gypsies in view of the statement therein made that a special regulation will come into effect which will prevent the German Criminal Code for juveniles from applying to gypsies and those of gypsy descent merely because a definite regulation is lacking (1095).”

    The role of an OLC opinion in our government as the statement of law binding on the Executive is a significant aspect of the Yoo case that makes this not merely an opinion up or an opinion down but an operational document (an act) to further the conspiracy to torture.

    In addition, the opinions (on the theory the opinions are post hoc rationalizations of things that went before or pre hoc “cram downs” to help those below accept to do the torture) are operationalized documents.

    Put kindly, they are frauds.

    The work of Yoo and others in furthering the National Security Principals conspiracy to torture and other crimes is prosecutable in US domestic law as the means available to vindicate the international law rule that US v Alstoetter is concerned with.

    Obviously, the crimes do not track directly with Alstoetter but the may in fact be easier to create in US domestic law rather than in international law. Look at how far we are pushing conspiracy law in cases like Padilla for example.

    The key to the domestic prosecution is that it vindicates the international law rules (treaty and customary international law on torture etc) through the relevant domestic US law.

    With all due respect, I believe Kevin and Marty underestimate the US v Alstoetter, have spent years in denial about the seriousness of what has gone on or the nature of the acts of these lawyers in their legal opinions. And we still do not have all the opinions in place.

    Also, I do not believe this is a case of just “legal minds may differ”. Rather this is a more straightforward case of bring the evidence to the prosecutor, empanel a grand jury, issue an indicment, have a trial, and get the conviction.

    Let a jury see this and decide on guilt or innocence.



  2. Kevin,

    First off, let me say that I completely agree with your analysis of the Justice case. It is certainly true that none of the defendants there was convicted for giving legal advice.

    My question to you is this – isn’t it rather clear, under contemporary international criminal law, that a lawyer could indeed be convicted for giving legal advice, if the prosecution charges joint criminal enterprise? In other words, if a prosecutor would be able to prove that there was a joint criminal enterprise with the common criminal purpose of torturing suspected terrorists for information, and that Yoo substantially contributed to this joint criminal enterprise by writing official legal opinions which enabled torture while being aware that they would be used for such purposes, that would make Yoo culpable not for some separate war crime of writing criminal legal opinions, but for the actual crimes of torture perpetrated by somebody else.

    So, a criminal conviction would require more than just proving that the legal advice given by Yoo was manifestly unreasonable. It would also require proving the elements of JCE. For my part, at least, JCE is a rather apt description of what has actually happened, and I don’t think it would be impossible to prove it before and independent and impartial court.

  3. If Kissinger has never been brought to the dock for engaging in a joint criminal enterprise it seems unlkely that either Bybee or Yoo will be.

    In fact, if history is any guide, we might someday see Bybee or Yoo sit on the Supreme Court! Recall that it was William Rehnquist who, as an assistant attorney general under Richard Nixon, “came up with the argument that the law mandated presidents to deploy troops ‘in conflict with foreign powers at their own initiative'” (Stanley Kurnow). It’s clear that Rehnquist’s career did not suffer from providing obsequious legal dissimulation on behalf of conspicuous war crimes. Seen in this dark light, and whatever the odious ethical and legal nature of both Yoo’s and Bybee’s infamous Memos, it pales into comparison to crafting legal sanction for the bombing and invasion of Cambodia.

    In fact there’s a deep connection between the two administrations in this regard, as Bruce Shapiro made clear several years ago:

    ‘The Bybee memo attempts to erect a legal scaffolding for physical and psychological coercion of prisoners in the War on Terror. Coming from the Office of Legal Counsel, it holds the authority of a policy directive. The memo proposes so finessed and technical a reading of antibrutality laws that all manner of “cruel, inhuman or degrading” interrogation techniques–including beatings and sexual violations like those in Abu Ghraib–simply get reclassified as Not Torture. The memo’s language so offends common sensibility that within a few days of its release, White House officials were disavowing its conclusions and selectively declassifying documents allegedly showing the President’s commitment to humane treatment of prisoners.

    Yet even while putting up a smokescreen of concern for humanitarian treatment of prisoners, the Administration made no attempt to distance itself from Bybee’s most crucial theme: unreviewable presidential war powers. Anti-torture laws, the memo argues, simply do not apply to “detentions and interrogations of enemy combatants pursuant to [Bush’s] Commander-in-Chief authority.” All the documents released by the White House reflect this same obsession with presidential war powers-and in many cases, incorporate Bybee’s precise language.

    It is in defense of his view of the Commander in Chief’s legal impunity that Bybee invokes the Cambodia precedent, citing Rehnquist’s 1970 white paper as his principal authority. Rehnquist spelled out his arguments both in that memo and in an article later that year for the New York University Law Review.

    One glance at the Rehnquist documents and it is easy to see why his 1970 reasoning resonates throughout the Bush Administration’s 2002 and 2003 memorandums. Just as Bybee finds that torture isn’t torture, Rehnquist argued that the invasion of Cambodia wasn’t really an invasion: “By crossing the Cambodian border to attack sanctuaries used by the enemy, the United States has in no sense gone to war with Cambodia.” The Bybee memo offers officials accused of torture the “necessity” defense; in 1970, Rehnquist argued that pursuing Vietcong troops into previously neutral territory was “necessary to assure [American troops’] safety in the field.”

    In particular, Rehnquist offered the Nixon White House a bold vision of the Commander in Chief’s authority at its most expansive and unreviewable: The President’s war power, he wrote acerbically, must amount to “something greater than a seat of honor in the reviewing stand.” Cambodia–where the devastation of the war and the Nixon Administration’s carpet-bombing following the invasion would prepare the way for the Khmer Rouge holocaust–amounted to “the sort of tactical decision traditionally confided to the commander in chief.”

    For Rehnquist, the invasion of Cambodia in May of 1970 was a dual watershed. On the one hand, it marked the greatest assertion of expansive presidential warmaking power, crystallized in the white paper cited by Bybee. At the same time, protests against the Cambodian invasion led Nixon to centralize the gathering of domestic political intelligence directly in the White House; Rehnquist supported this domestic expansion of executive-branch authority, arguing in court for no-knock entry, preventive detention, wiretaps and other ancestors of today’s Patriot Act.

    The authority of Nixon and his successors was soon curtailed–at least on paper–by reform-minded legislation: the War Powers Act, the Freedom of Information Act, CIA reform, the War Crimes Act and a host of other statutes. And ever since the invasion of Cambodia, a parade of conservative policy-makers–among them Rehnquist, Rumsfeld and Vice President Dick Cheney–have repeatedly sought to regain the expansive presidential power asserted in Rehnquist’s memo.’

    As to Marko’s suggestion in particular: it’s rather interesting that while the “key to joint commission is the ‘common plan, design or purpose,” “the plan need not be formed before the act is commited [!]; it can also be spontaneous. Its presence may be deduced from the cooperation of several persons to carry out a criminal undertaking.” Indeed, “the contribution to the crime need not be related to execution, but can consist of any kind of assistance (‘assistance in, or contribution to, the execution of the common plan or purpose’). Contributions even at the planning stage are sufficient [!]. It is not [even!] necessary for the joint perpetrators to be organized in a military, political or administrative unit.” This does seem to be a rather loose or easy standard for establishing the actus reus elements, while the mens rea element does not at all seem insurmountable. The quoted material is from Gerhard Werle, Principles of International Law (The Hague: T.M.C. Asser Press, 2005): 120-122. As a legal layman, I also consulted William A. Schabas, An Introduction to the International Criminal Court (Cambridge, UK: CUP, 2004), and Robert Cryer, et al. An Introduction to International Criminal Law and Procedure (Cambridge, UK: CUP, 2007).

    So, while this is based on the case law of the Yugoslavia Tribunal (ICTY), is this acceptable to the ICC?

    And if I’m not mistaken, Kevin’s concerns are something like the following: “Perhaps unsurprisingly, this form of liability has proved controversial. The Appeals Chamber’s induction of joint criminal enterprise liability from the Second World War cases has been criticized on the basis that the cases do not support the conclusions they reached. Indeed, this was specifically raised by another defendant before the Appeals Chamber, claiming that imposition of liability on this basis violated the nullum crimen sine lege principle.” (See Cryer, et al.: 308, above)

  4. We should always stress in going into this that the point of this exercise is not to compare John Yoo and his colleagues with the Nazis, but rather to distill the operating international law principles governing lawyers who dispense advice to governments in a war setting. (It’s worth a passing note that the Justice Case distinguishes itself from several other Nuremberg cases in that many of the defendants were career justice employees who were late-comers to the party, i.e., became party members after the Machtergreifung, when party membership was obligatory for those holding higher government posts). We should also note that this trial was one of the U.S. cases, not one of the international cases, for reasons which Telford Taylor and others have described — namely that the British and French were cold to the idea of trying the lawyers, fearing this would raise uncomfortable issues for themselves in their colonial rearguard mode.

    Aside from the unwarranted flattery, this is a very good post– with good criticism — that does a solid job of summarizing some important details of the Altstoetter case. It’s regretable that much of the material from the case is difficult to access and research, and that the case record itself is rather rambling. But Kevin has done a good job of assembling and summarizing key parts of it.

    I agree with Kevin that the evidence relating to the Nacht- und Nebelerlass defendants (NNE), especially von Ammon, is key for this point. Of course in the case of Altstoetter proper, the conviction did in fact turn specifically on three letters. But Kevin is correct that the defendants were all involved in the Justice Ministry’s actual administration of the program. We need to be much more careful in distinguishing what the Justice Ministry’s role was in this program. And I don’t agree with him as to the role of the legal opinions. The NNE was a counterinsurgency program designed to give military and occupation security authorities the power to apprehend civilians believed to be engaged in behind-the-lines attacks on Axis troops the authority to “disappear” persons without the need to go through the legal formalities that international law at the time would have required of an occupying power dealing with civilians. The internal records from the High Command (OKW) show that attacks on soldiers by civilians behind the lines of the East Front (especially in occupied Soviet territory) were the immediate inspiration. The original memoranda talk about a new kind of enemy which was fully disguised within the civilian population and was ideologically motivated and driven. These conclusions are correct — as CPSU documents reveal the party’s organization of such a terror campaign against German soldiers. As the proposal emerged from OKW, military and security authority was to be plenary and to rest on executive war-making notions. Von Ammon objected that this approach was a violation of the principle of legality, and he and his colleagues insisted that a process of adjudication be introduced; he also noted the need to arrange for wills, for the custody of children of the “disappeared” and the like. This was the role of the legal administration with respect to NNE. As Detlev Vagts has pointed out, the bulk of von Ammon’s proposals were ameliorative in nature.

    The NNE program, and the court’s treatment of it in Altstoetter, has frequently been cited as the first international law authority on the concept of “disappearings,” which is a more modern crime against humanity. But an essential element of “disappearings” is that the person is treated outside the established legal regime (either that provided by the criminal justice system or the laws of armed conflict). The thrust of von Ammon’s position was to recognize this and to insist that a substitute judicial process be provided. This contrasts rather sharply with views articulated by the Bush Administration with respect to the “extraordinary renditions” program, for instance.

    But his clearest offense was providing the legal rationale for evasion of the requirements of international law, for instance by providing for the projection of German domestic law into occupied territory. (Even on this point, note that von Ammon was very concerned about the operation of the special judicial process in occupied territory; he wanted the detainees to be transferred to Reich territory.)

    The tribunal’s view was that von Ammon and his colleagues should have properly advised on the limitations of international law. They did not do so. If we had to put von Ammon’s mistakes on legal interpretation side-by-side with Yoo’s, the comparison would be very much in von Ammon’s favor, I think. That’s largely a result of the fact that many of the violations which the Tribunal noted really became crystalized after World War II, and at the time of the Justice Case were fairer game for argument than today.

    Still, I am not trying to curry any sympathy for von Ammon — just the contrary, I think he got off lightly with his seven years served — but to make the point that the administration of the Justice Ministry’s plans was not the largest failing.

    On the other hand, it did constitute an overt act in a sense in which the mere rendering of an opinion may not, also a significant point.

    The bigger issues here are the JCE issues, which go to the notion introduced in the charge of “foreseeable” damage, among other things.

    Philippe Sands’s key finding — if there is just one — is that the bottom up narrative that the Administration puts forward surrounding the introduction of torture techniques is a sham. He follows the story to its roots, and he finds that it is, to the contrary, a “top down” story, with a number of lawyers engaging in an elaborate scheme to cover it up with the paper trail that starts with the Diane Beaver memoranda. Key to this unraveling is the story of the senior lawyers’ trip to GTMO at the launch of the process, a trip about which Haynes repeatedly lied. Now it’s possible to explain this from a PR angle focused on domestic politics, which undoubtedly was a major focus of the White House throughout, but a prosecutor could just as well make the case that this shows recognition and belief that the scheme was essentially criminal (or presented substantial likelihood of criminal culpability) and thus needed to be concealed. In fact the key participants had been warned repeatedly at that point that regardless of their curious views about the laws of war, a large majority in the legal community would take a different perspective and could well view their conduct as criminal. This advice was clearly propelling their conduct.

    The other striking parallel with the facts surrounding the NNE, which came out only with the examination of the records of the international law department at OKW at the close of the process, is that the German military lawyers had taken almost exactly the same stance that the American JAGs took on the Bush Administration’s detainee initiatives. They argued stringently for firm application of Geneva and Hague standards and said that this was driven by enlightened self-interest, i.e., to protect German soldiers. These views were overruled on the grounds that this was a “new kind of warfare” in which the principal foe, and the foe in the cross-hairs of the NNE, was terrorist in nature.

    Several of the senior JAGs have now described to me their direct dealings with Yoo in which they stressed criminal liability as the major concern. Yoo’s response was consistently that he could “fix the problem” by getting the Criminal Division to issue get-out-of-jail cards for all concerned. And this puts Yoo a step closer to the implementation of a plan and a step away from the issuance of a detached opinion.

    However, what we need now is to get to the bottom of all these carefully obscured dealings. It’s clear that will never happen before the Bush Administration leaves office, but after it’s gone, getting a clear picture of the lawyers’ dealings should be a priority.

  5. Incidentally, I’d like to reiterate Brian Tamanaha’s question (at Balkinization): “John Yoo is getting all the heat for the Torture Memo. But Jay Bybee was the boss. The memo was issued in his name, and he signed it. So why is Yoo up against the bullseye, while Bybee mostly gets a free pass?”

  6. On the last post, Bybee is not getting a free pass from me.



  7. Marko,

    I’d write a lengthy response, but one is not necessary — I completely agree with you. I don’t find the idea that an international tribunal would convict Yoo problematic at all, for precisely the reasons you mention.

  8. Professor Heller,

    Thanks to you and Marty Lederman for your posts (as well as for some interesting comments by Scott Horton, David Luban and others on the Balkinization thread). After reading your book proposal a while back on Opinio Juris, I was really surprised that you hadn’t weighed in with a view on United States v. Alstoetter and so I am glad that you have. I want to say in advance that you have one purchaser for your book (and I want mine signed to “non liquet”!)

    That said, I had a question, if you will indulge me. You write:

    the Tribunal’s judgment suggests that a government lawyer is liable for war crimes and crimes against humanity committed pursuant to his legal advice if he knew that certain actions violated international law, but nevertheless failed to inform his political superiors of that fact.

    Marty seizes on this to suggest that:

    Yoo, Addington and their crew did believe (i) that their ultimate view about the preclusive constitutional prerogatives of the Commander in Chief is the correct reading of the Constitution (albeit one that others are unlikely to embrace); and, mostly for that reason, (ii) that it is appropriate to apply numerous canons of statutory construction to interpret statutes to be much less restrictive of the executive in wartime than the text and structure of the statutes would allow, or that the lawmakers themselves either intended or would accept.

    And that seems to cut them free from liability.

    So my question: is your standard an objective one or a subjective one? Is it a reasonable lawyer’s view of the state of international law or just merely a lawyer giving his view in good faith no matter how, shall we say, aggressive? I think we’d have to conclude from Alstoetter that your standard was objective or am I incorrect?

    Moreover, I think even on a subjective standard the Torture Team of lawyers at the OLC are in trouble. Marty hints at that here: “When, if ever, such ‘aspirational’ constitutional interpretation by executive actors is appropriate — and whether it must be done openly, and with full candor — are very important and difficult questions.” I don’t think they are merely “difficult questions” but essential ones for the subjective standard. If Yoo, et al., believed they were legally correct, why were lawyers with dissenting views shut out of the process, and why was it done completely in secret? Scott Horton implies the same in his discussion of Philippe Sands’ findings above. Those questions would obviously need to be resolved to determine whether the lawyers writing the torture memos were doing so in good faith.

  9. Coming from contract law – even if a subjective test is held that subjective view has to be held in good faith. And the question I am seeing in this post is whether the process of cutting out dissenting views, firing Dan Levin after the first revised torture memo and before the second one, the quiet trips suggest to me the careful putting together of a fraud – not good faith analysis.

    I have heard it said that as lawyers are use to the attorney client privilege they expect persons to tell them the truth and for themselves to proceed on that truth to defend their client.

    Because of this, one difficulty for lawyers may be to imagine people lying to them. The Clinton Monica Lewinsky example of how people could be so credulous to Clinton’s denials is an example.

    Having been in the corporate world for a while, it is perfectly foreseeacble to me that people are saying all kinds of things that they want us to hear to make us think that there is nothing here. That is their interest in not being prosecuted.



  10. Non Liquet,

    Thanks for the kinds words. I will happily sign your book (especially because that means I will have finished it).

    With regard to your question, I believe that this is one of the few areas in which the law does require subjective knowledge of illegality. The judgment in the Justice Case does not say so explicitly, but the Tribunal pointed out again and again that the defendants knew their policies violated international law, so I think it’s a reasonable inference.

    I would also argue that international law continues to require actual knowledge of illegality. Element 1 of the Rome Statute’s war crime of denying a fair trial (Art. 8(2)(a)(vi)), for example, provides that “The perpetrator deprived one or more persons of a fair and regular trial by denying judicial guarantees as defined, in particular, in the third and the fourth Geneva Conventions of 1949.” The default intent and knowledge requirement in Article 30 applies to that element, which means that the perpetrator must have known that the trial did not include all of the guarantees defined in the Geneva Conventions and intended to deprive the defendant of the non-included guarantees. A mistake regarding those guarantees thus negatives the mens rea required by the crime. (For a complete discussion of these “mistakes of legal element,” as I and others have called them, see my forthcoming article in the Journal of International Criminal Justice.)

    That said, I don’t think the subjective standard provides Yoo and company with much protection. Although I’m not an expert on their actions, it seems clear that their legal advice was designed to ensure that the various parties involved in the Bush administration’s detention and interrogation regime could never be domestically prosecuted for violations of international law. That goal, it seems to me, implies that Yoo and company knew full well that the regime was inconsistent with international law, which is all that the various international crimes requires.

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